/J^i^>^^#i^ /^ /^^ •^ 
 
 ARGUMENT 
 
 HON. AARON F. PERRY. 
 
 May it Please the Court : 
 
 When General Burnside requested me to assist the District 
 Attorney on this occasion, he forebore to give me any instruc- 
 tions, except to present such considerations to the judgment of 
 the Court as shouhl seem to me right and proper. I have a 
 distinct impression that he has no preference that the questions 
 here presented should be heard before any other jurisdiction or 
 tribunal rather than this ; and that he wishes his proceedings 
 to be here discussed by his counsel, chiefly on the broad basis 
 of their merits ; that they should be made to rest on the solid 
 ground of the performance of a high and urgent public duty. 
 The main argument which I shall present to the Court will, 
 therefore, be founded on the obligations, duties, and responsi- 
 bilities of General Burnside as a Major-Gcncral in command of 
 an army of the United States, in the field of military opera- 
 tions, for the purposes of war, and in the presence of the 
 cnom3% I shall not place it on any ground of apology, excuse, 
 or palliation, but strictly and confidently on the ground of doing 
 what he had a lawful, constitutional right to do ; and on the 
 ground of performing a duty imposed upon him as one of the 
 necessities of his oflicial position. I shall make no plea of an 
 exigency in which laws are suspended, and the Constitution for- 
 gotten, but shall claim that tlie Constitution is equal to the 
 emergency, and has adequately provided for it ; that the act 
 7 (97) 
 

 98 * APPLICATION FOR 
 
 complained of here is an act fully vrarranted by law, and 
 authorized by the Constitution. T shall support this claim by 
 references to more than one opinion of the Supreme Court of the 
 United States, and to other authorities. 
 
 But before advancing to the main arerument, I beg leave to 
 invite a few moments' attention to the paper which is offered as 
 a basis for the proposed action of this Court. It is a petition 
 purporting to relate certain incidents or transactions which befell 
 Clement L. Yallandigham, who is stated to be here in the city. 
 No reason is shown why these statements could not have been 
 authenticated by his own signature and affidavit. In the nature 
 of the case, his attorney, Mr. Pugh, could have had little, if any, 
 personal knowledge of the circumstances related. Mr. Vallan- 
 digham, if any one, had knowledge of them. Yet Mr. Yallan- 
 digham does not sign his own petition, nor make any affidavit. 
 ^Ir. Pugh, his attorney, makes affidavit that he " believes " the 
 petition to be true. Is there any reason here shown why, if 
 an affidavit be required, as undoubtedly it is, it should not bo 
 made by the party knowing the facts ? Why should the general 
 rule be set aside in this proceeding, which requires an affidavit 
 to be made by the person who knows the circumstances, or, at 
 least, that good ground be stated for offering the affidavit of 
 another? I do not care to multiply remarks on this part of 
 the case, but refer the Court to J5lr pa7ie Dorr, 3 How. 103, 
 for an example of great strictness, in applications of this 
 description. 
 
 The petition thus vicariously made and sworn to, on behalf 
 of Mr. Yallandigham, presents some peculiarities of structure, 
 partly as matter of rhetoric and partly as matter of substance, 
 which can not be entirely overlooked. It relates that tlie peti- 
 tioner is a native-born citizen of the State of (Miio, a fact which 
 may be interesting, but how it can lie thought to be material 
 is not apparent. A native-born citizen of South Carolina, or a 
 naturalized citizen, would be entitled to the same legal immu- 
 nities. The petitioner next informs the Court that he is not 
 enlisted or commissioned in the land or naval forces of the 
 United States, nor called into actual service as one of the 
 
z. 
 
 WRIT OF HABEAS CORPUS. 99 
 
 militia. On tliis allegation the main argument for petitioner is 
 grounded. It is implied by the whole argument, if not distinetly 
 admitted, that if he had been enlisted or commissioned in the 
 land or naval forces of the United States, or had been called 
 into actual service as one of the militia, the arrest might have 
 been made. Having thus drawn a broad line of demarkation 
 between himself and those in the actual service of their country 
 in a military capacity, he relates that, " nevertheless " he was 
 arrested. The circumstances of the arrest are rhetorically 
 stated; but, in substance, nothing more is made of it than an 
 arrest. It was done, he says, between two and three o'clock in 
 the morning ; done in his dwelling-house ; done in his dwelling- 
 house in which his family then were. His house was sur- 
 rounded ; surrounded by about one hundred soldiers ; soldiers 
 in uniform and armed, acting under the direction of General 
 Burnside. These soldiers then and there, he says, broke the 
 outer door and two inner doors ; not only broke them, but vio- 
 lently did it ; that they seized the petitioner, seized him b}'- over- 
 powering numbers, and imprisoned him against his will. If peti- 
 tioner had imagined it possible there might be those whose good 
 opinion he valued, who might suspect him of want of enterprise, 
 or want of activity in allowing himself to be captured, and who 
 might look upon it as wearing unheroic aspects, and as tending 
 to an anti-climax in his career, then this part of the petition 
 might be useful in his defense. It is graphic and explanator}^. 
 He was undoubtedly captured, not with his consent ; perhaps 
 unexpectedly. And it must be confessed that the rehearsal 
 carries with it more or less of the sound of aggravation. If 
 these men had not been in uniform ; if there had been only 
 seventy-five instead of a hundred; if they had broken open only 
 two doors instead of three, or broken them more gently ; if they 
 had merely arrested him, and had not "seized" him, or had not 
 done it by "overpowering numbers," or had acted the little 
 drama at precisely midnight or at sunrise or at noon, I appre- 
 hend the legal effect would have been the same as now. This 
 rhetorical literature is, for the purposes of legal inquiry, redund- 
 ant. But in another particular there is no redundance. It is 
 
100 APPLICATION FOR 
 
 not stated, nor does the attorney, in his afiRdavit of belief, venture 
 upon the assertion that any thing of all these circumstances was 
 ■wanton or unnecessary. It is not charged that mure men -were 
 there, or that mure violence was used in entering the house than 
 was necessary, nor that petitioner has been sultjected to harsh 
 treatment or useless rigor. It stands on the petition, after all, 
 as a simple military arrest — no more. 
 
 The petition further relates, not that the arrest was made 
 without probable cause, or without a warrant, or without a 
 charge supported by oath or affirmation, but in effect, that all 
 three of these things did not exist together. It was, it is 
 alleged, " without any warrant issued upon probable cause sup- 
 ported by oath or affirmation, and in contempt of his rights as 
 an American citizen." And this is the only part of the affidavit 
 which goes to charge the arrest as illegal. It is stated, in an- 
 other part of the petition, that petitioner is not, under the Con- 
 stitution, amenable to be tried by a military commission ; but 
 unless the seizure "in contempt of his rights" is equivalent to 
 an allegation that the arrest was illegal, there is no allegation 
 of illegality. 
 
 The petitioner states further that he was furnished with a 
 copy of the charge and specifications against him, which he 
 exhibits and makes part of his petition, and which will be more 
 particularly referred to in the course of the argument. For the 
 present purpose it is enough to notice that the charge was, in 
 substance, a charge of active disloyalty toward his own govern- 
 ment, and of active sympathy with its enemies, now in battle 
 array against it. Neither the petition nor affidavit denies that 
 there was probable cause for the charge, nor that the charge 
 was honestly believed by General Burnside to be true, nor that 
 the charge was, and is in fact, a true charge. But the petition, 
 claiming the arrest to have been made by soldiers, and by the 
 command of a Major-General of the United States, declares it 
 to be "manifest oppression under color of military authority," 
 and invokes the action of this Court for his relief It appears 
 that a portion of these allegations were made to show that this 
 Court has jurisdiction. By the fourteenth section of the Judi- 
 
k3 
 
 WRIT OF HABEAS CORPUS. 101 
 
 ciary Act of 1789, the jurisdiction of this Court, in cases of 
 Habeas Corpus, is confined to instances where the applicant is 
 in custody, " under or by color of the aulhoriiy of the United 
 States,^* etc. (Dunlop's Dig. 53.) That is to say, this application 
 must be brought under one of two categories, or the Court has 
 no jurisdiction: 1. The applicant must show himself in custody 
 under the authority of the United States. Or, 2. He must 
 show himself in custody by color of the authority of the United 
 States. I submit that this petition shows that petitioner does 
 not place himself in either category. The whole argument of 
 Mr. Pugh is directed to the point that there is no authority in 
 any branch or part or officer of the Government of the United 
 States to make such arrests. If he is correct, the arrest is 
 clearly not under the authority of the United States. His 
 argument is that the act is wholly unauthorized and unconstitu- 
 tional : in effect, that the United States is a corporation ; that the 
 Constitution is its charter ; that this arrest is not authorized by 
 the charter, and, in legal phrase, is idtra vires. If it be admitted 
 to be legally done under the authority of the United States, the 
 admission takes away all ground for a Habeas Corpus; for the 
 end of a Habeas Corpus is to ascertain whether a commitment 
 is legal. There may be cases where an arrest is made under 
 the authority of the United States, in which all papers are in 
 due form, and the authority indisputable, but where the process 
 was set in motion by some groundless, Avanton, or fraudful 
 device. In such cases, I apprehend, the jurisdiction of this 
 Court would be ample. But this is not claimed to be a case of 
 that kind. 
 
 Indeed, the counsel for petitioner does not place the jurisdic- 
 tion on this branch of the alternative. He denies, utterly, thor- 
 oughly, and without stint or qualification, that this arrest was, or 
 could have been under the autliority of the United States. He 
 places the jurisdiction on the other ground, viz. : that the arrest 
 was " by color of the authority of the United States." 
 
 What is meant by color in law? An arrest under color of 
 authority would be an arrest by proceedings apparently legal, 
 
102 APPLICATION FOR 
 
 but wliich, by reason of some irregularity or defect, woubl be 
 capable of being shown to be unauthorized. (Wharton's Lavr 
 Die. 157; 1 Bouvier's Law Die. 243.) The case, Ex parte Joseph 
 Smith, (3 McLean, 121,) is an example of arrest by color of author- 
 ity. The warrant was in due form. The officer had full power. 
 But the affidavit was defective on which the warrant had been 
 issued. In the present case there was no mistake or defect, no 
 f:illacious appearance or pretext, nothing pretended or supposed 
 which has been found to be unreal. The authority was perfect, 
 or it was nothing. It was wholly sufficient, or wholly wanting. 
 It was a perfectly legal arrest, or it was an open, flagrant vio- 
 lation of the peace. "Whatever else may be said of it, it can not 
 be said to be by color of any thing. The fact that it was done by 
 a Major-General, and by soldiers in uniform, do not give it the 
 color of authority. Unlawful and unauthorized acts done by 
 soldiers or officers of the United States are not by color of 
 authority. " To give color to the plaintiff is to as!<ign to him, in 
 the plea, some colorable (i. e., defective) hut fictitious title," etc. 
 (Gould's Pleadings, 348.) I submit that it would be an abuse of 
 language to call the arrest made by General Burnside a defect- 
 ive or fictitious thing. It was completely authorized, or it had 
 no colorable excuse. 
 
 The petition, therefore, makes a case of arrest which was nei- 
 ther '•under or by color of the authority of the United States," 
 and consequently not within the jurisdiction of this Court ; or it 
 makes a case of arrest every Avay legal and fully authorized, in 
 which no writ of Habeas Corpus should be granted. 
 
 Having sufficiently called attention to these preliminary points, 
 I advance with more satisfaction to the main argument. The 
 careful analysis of the petition, already made, will be found to have 
 its uses and bearings in the argument which I shall now offer, 
 not altogether disproportioned to the time which it has occupied. 
 
 Mr. Pugh has correctly argued that a Habeas Corpus is in 
 the nature of a writ of error to examine into the legality of an 
 arrest or coniniilinont. If it appear that the arrest or commit- 
 ment complained of was a legal act, the writ of Habeas Corpus 
 
/^ 
 
 WRIT OF HABEAS CORPUS. 103 
 
 will not issue ; because its whole office is to inquire into il^e 
 legality of the act, and the Court will not do a nugatory and 
 useless thing. 
 
 A Habeas Corpus does not meddle with arrests legally made. 
 There are well-kuown cases where the civil magistrates and 
 officers of the peace make arrests on sight and without warrant. 
 In such cases the legality depends upon circumstances to make 
 a case where an arrest is allowed by law Avithout a warrant. 
 These circumstances, if they exist, arc a warrant, or equivalent 
 to it. So, if war or any other state of affairs exist, which by 
 recognized principles authorize, require, and justify an arrest 
 by military force, no Habeas Corpus can meddle Avith it. The 
 order Avhich sends an army to make war, is all the Avarrant it 
 needs for every necessary act of Avar. It may capture and im- 
 prison enemies, and not those in arms only. " The whole," 
 says Vattel's Law of Nations, p. 346, " is deduced from one 
 single principle, from the object of a just Avar, for when the end 
 is laAvful, he Avho has a right to pursue that end has, of course, 
 a right to employ all the means Avhich are necessary for its at- 
 tainment." One of the undoubted means of Avar is to take life. 
 As the greater includes the less, the right to take life implies 
 the right to take every thing. 
 
 " All those persons belonging to the opposite party (even the 
 women and children) he may lawfully secure and make prisoners, either 
 with a view to prevent them from taking up arms again, or for the 
 purpose of weakening the enemy."' . . . "At present, indeed, this 
 last-mentioned expedient is seldom put in practice by the polished 
 nations of Europe : women and children are suftcred to enjoy perfect 
 security, and allowed permission to withdraw wherever they please. 
 But this moderation, this politeness, though undoubtedly commend- 
 able, is not in itself absolutely uldigatory, and if a General thinks fit 
 to supersede it, he can not he justly accused of violating the laics of 
 war." (Vattel, p. 352, 346.) 
 
 Persons so captured or arrested are prisoners of war. 
 
 " For the same reasons, which render the observance of those 
 maxims a matter of obligation between State and State, it becomes 
 
104 APPLICATION FOR 
 
 equally and oven more necessary in the unhappy circumstance of two 
 incensed parties lacerating their common country. (Vattel, 425.) 
 
 The application to citizens in revolt of the rules of war, is 
 in the interests of mercy. If they should be put upon trial 
 before a jury in such moments of overwhelming excitement, 
 one of two results would follow. 
 
 If the jury should not be so divided by the passions raging 
 through the whole population as to disagree, and thus bring the 
 law into contempt, their passions would take them to one side 
 or the other. Men might be let loose, and certainly would be, 
 ■whom the safety of the State required to be restrained, or more 
 probably convicted and executed without suflBcient evidence. 
 "When society is imperiled by intestine war, the passions rage 
 which occasioned the war. The entrails of the volcano, covered 
 for a while, have at length broken forth. Smoke and ashes ob- 
 scure the sky. Fiery floods pour along the earth. No good 
 man could be impartial. Who claims to be impartial impeaches 
 himself. Believing his government to be in the right, interest, 
 feeling, lawful duty compel him to uj)liold it Avith all his power. 
 He has no decent pretext, certainly no lawful excuse, for throw- 
 ing on others a duty to uphold the government which he shrinks 
 from. It is each man's duty as much as any other's. Its ene- 
 mies are, and in the nature of the case must be, his enemies ; 
 its friends his friends. The law allows him no other position. 
 On the other hand, he who believes the government to be wrong 
 has no choice but to sympathize with its enemies. He must 
 assist them, and will assist them, either openly or by secret and 
 suppressed sympathy. On one side or the other, men go to the 
 j»n-y-box under the influence of deep feeling. The law of na- 
 tions, or rather the laws of war, which in civil commotions au- 
 thorize the opposing parties to treat each other as prisoners of 
 war, is not, therefore, an aggravation of dangers, l)ut an ame- 
 lioration of them. Vattel, p. 426, assigns two reasons for it: 
 One, lest the civil war should become more cruel. The other, 
 the danger of committing great injustice by hastily punishing 
 
WRIT OF HABEAS CORPUS. 105 
 
 those who arc accounted rebels. " The flames of discord and 
 civil war are not favorable to the proceedings of pure and sacred 
 justice." More quiet times are to be waited for. 
 
 It appears, then, that in time of war, the fact of war author- 
 izes and legalizes arrests ; and the order for an army to make 
 war is its sufficient warrant for making such arrests as are jus- 
 tified by the laws of war. I am not now inquiring whether the 
 arrest of Clement L. Vallandigham is justifiable by the rules of 
 war. That inquiry will follow in its due course. I am now 
 adverting to the laws of war, and showing that arrests of some 
 kinds are authorized. These principles are, I suppose, undis- 
 puted and indisputable. It follows that such arrests are legal ; 
 and by showing the existence of circumstances making the 
 arrest legal, a sufficient answer is made to a Habeas Corpus. 
 The writ is not in such case suspended. It is respected, upheld, 
 enforced, and performs all the office a Habeas Corpus can in 
 any case perform. 
 
 It is a logical consequence, unavoidably resulting from the 
 premises, that while all wars, insurrectionary or foreign, bring 
 into action the laws of war, they do not, necessarily, suspend 
 the writ of Habeas Corpus. The Legislature may enact a 
 statute making some act a crime which was not so before, and 
 authorizing persons guilty of it to be arrested and held; or 
 authorizing a writ of civil capias, under which the body is seized 
 and held in circumstances not before authorizing such an arrest. 
 These things not only may be done, but are frequently done. 
 No one thinks of them as a suspension or abolishment of Habeas 
 Corpus. So, in war, the laws of war authorize arrests which 
 were not authorized until those laws were brought into play by 
 the fact of war. In these cases Habeas Corpus is no more 
 suspended than in the others. Full force and eff'cct may be 
 given it while enforcing the laws of war. And this is the con- 
 stitutional view. The power to declare war is broadly given ; 
 the power to suspend Habeas Corpus is given distinctly from 
 the war power, and in addition to it, "when in cases of rebel- 
 lion or invasion the public safely may require it." If the opera- 
 tion of the laws of war were a suspension of Habeas Corpus, 
 
106 APPLICATION FOR 
 
 every thing had been said when Congress was autliorized to 
 dcchvre war. No further declaration was needed. It is against 
 correct rules of construction to hold that Habeas Corpus sus- 
 pension is inteniled to be merely one of the means of war. 
 Tlu-y might as well have provided for making war in one para- 
 graph, and then have provided, as a separate and distinct power, 
 authority to kill and capture enemies in battle. War may be 
 made. In addition to making war, Habeas Corpus may be 
 suspended in certain contingencies. 
 
 Learned counsel, on the other side, has called our attention 
 to the act of Congress of March 23, 1803; and to another act 
 of Congress, showing that the oifense with which petitioner is 
 charged is an offense against the civil law, and punishable under 
 a law of Congress ; one for which he may be held and tried 
 before the civil tribunals. Neither of these acts interferes with 
 my argument. The first section of the act of March 23, 18G3, 
 authorizes the President, in contingencies there named, to sus- 
 pend the writ of Habeas Corpus. The learned counsel says he 
 has not suspended it. Undoubtedly, if he had suspended it, 
 there would be an end of tliis case. I do not claim that it is 
 suspended. My whole argument proceeds on the ground that it 
 is not suspended, ])ut in full force. That act of Congress is 
 based upon the idea that arrests had before that time been made, 
 and might again be made, which couhl only be sustained by a 
 gus])ension of Habeas Corpus ; in other words, arrests, not sus- 
 tainable by the laws of war, or by any other law, except the 
 extreme demands of public safety when " in cases of rebellion 
 or invasion the public safety may require." The suspension of 
 Habeas Corpus is a suspension of a right to intpiire into the 
 legality of an arrest ; for if it can be shown that the arrest was 
 lawful, there is no need to suspend the Habeas Corpus. War 
 had long before been recognized and legalized. Nothing ia 
 more certain in law than that military men, in time of war, are 
 legally protected in doing the acts authorized by the laws of 
 war. Such acts are in no sense unlawful. But this act of Con- 
 gress, sec. 4, provides an indcninity for acts done by the Presi- 
 dent, or under his authority, which was wholly unnecessary 
 
<^ 
 
 WRIT OF HABEAS CORPUS. 107 
 
 unless it contemplated acts not defensible under the laws of -war. 
 The act neither reprobates nor prohibits. It contemplates the 
 necessity, allows the act, and provides for it. One of two con- 
 structions is necessary. It refers only to such arrests as have 
 been made under a suspension of Habeas Corpus, in which 
 construction it does not apply to this case ; or it provides for 
 irregular arrests, without process or Avith defective process, 
 which might, if Habeas Corpus were sustained, be discharged 
 under it. But in no event does it contemplate the discharge 
 of an arrest by Habeas Corpus, unless or until the steps there 
 pointed out shall have been first taken, or the contingency there 
 provided for shall have happened. If learned counsel, therefore, 
 bring themselves under the operation of this act, they defeat 
 their application here, and are remitted to another mode of 
 relief. If this act does not apply, it is outside of the case, and 
 need not be further discussed. If it does apply, it is fatal to 
 this petition. I understand learned counsel to admit that it 
 does not apply here, and in this I agree with him. It is an 
 undoubted principle of public law, that persons captured or 
 seized under the laws of war are prisoners of war. They may 
 be guilty of civil offenses, punishable by the civil tribunals. Im- 
 prisonment under the laws of war does not discharge them from 
 their offenses. They are or may be held until they can be 
 brought to a legal trial in a time of restored tranquillity. Ne- 
 cessity forbids their running at large ; humanity forbids to put 
 them on trial at a time so unfavorable to the proceedings of 
 pure and sacred justice. (Vattel, 426.) The act of March 23, 
 1863, is expressly limited, in its operations, to prisoners who 
 are held " otherwise than as prisoners of war." 
 
 The President's proclamation of September 24, 18(32, suspend- 
 ing Habeas Corpus and declaring martial law, is not referred to 
 in the act of March 23, 1803, nor published in the regular 
 edition of laws. I have no knowledge that it has been with- 
 drawn or superseded, otherwise than as a matter of inference 
 from the act of Congress. If it remains in force, it ends this 
 application. I choose rather not to rely upon it. There is no 
 inference to be drawn from the act of Congress against that 
 
lOS APPLICATION FOR 
 
 part of it \ihich proclaims martial law ; but in tlio viow I am 
 urging of the principles of public law, such a proclamation can 
 perform no office except to give publicity to a fact before exist- 
 ing. To whatever extent the fact of war brought into play the 
 laws of war, those laws had their full force without a proclama- 
 tion ; to that extent a proclamation was proper, but unnecessary. 
 Beyond that it was nugatory, and could not add one cubit to the 
 stature of Avar. A proclamation of martial law is often con- 
 founded with, and considered equivalent to, a suspension of 
 Habeas Corpus. But this is inaccurate. If the President had 
 authority to issue such a proclamation, and has not rescinded it, 
 nothing can be more clear than that Congress had no power to 
 rescind it. But I do not choose to embarrass the discussion by 
 relying upon a document which there is plausible ground to sup- 
 pose Congress might not have considered in force. 
 
 Having cleared the field of argument from such chances of 
 misapprehension and confusion as prudence required, I recur 
 to the proposition advanced by learned counsel on the other 
 side, and which I had intended to advance myself, though 
 scarcely necessary to be mentioned. 
 
 A proceeding of Habeas Corpus is in the nature of a writ of 
 error, to inciuire into the legality of the commitment or arrest. 
 If the application shows the arrest complained of was a lawful 
 one, the Court will go no further. It will not put a defendant 
 to show, by his answer, what is already shown by the petition. 
 On this I suppose I have the happiness to agree with learned 
 counsel on the other side. I have also the happiness to agree 
 with him that the right of Habeas Corpus has not, in this case, 
 been suspended, but is to be treated as in full force, with neither 
 more nor less respect than is habitually paid to it in courts of 
 justice. 
 
 I claim, then, that the facts before this Court show that the 
 arrest of Clement L. Vallandigham, by Ambrose E. Burnside, 
 a Major-General in the United States service, commanding in 
 the Department of the Ohio, was a legal and justifiable arrest. 
 For the facts showing its legality I rely, 1. On the petition and 
 affidavit of the prisoner; 2. On facts of current public history of 
 
V 
 
 WRIT OF HABEAS CORPUS. 109 
 
 "which the Court is bound to take judicial cognizance. Among 
 the facts of public history, I need recall but few. Unfortunately, 
 the country is involved in dangers so many and so critical, that 
 its people neither do nor can divert their thoughts to other topics. 
 
 There is on foot an organized insurrection, holding by mili- 
 tary force a large part of the United States, and controlling tbo 
 political organization of at least twelve States of the Union. It 
 has put into the field armies of such strength that the armies of 
 the United States have not been able to overcome them. Bat- 
 tles of great magnitude are fought, and prisoners mutually cap- 
 tured and exchanged. In short, we have, for two years, been in 
 a recognized state of civil war, on a scale large and destructive, 
 almost beyond historical comparison. This insurrection claims 
 to have so much power as to be beyond the means of the gov- 
 ernment to overcome, and to be entitled to be recognized by 
 foreign nations as an independent power. Were it possible to 
 doubt the imminence of the danger, and extremity of peril from 
 what we see around us, we should be warned of it by the admo- 
 nitions of foreign governments holding the relations of friendly 
 governments, and claiming to be impai-tial. They freely express 
 the opinion that our danger is not merely extreme, but irreme- 
 diable ; that the Constitution, and all hopes founded upon it, 
 must perish. 
 
 This insurrection has for impulse, feelings and opinions grow- 
 ing out of the past civil history of the country. x\s a matter 
 of course it can not be, and as a matter of fact it is not, limited 
 to places, or described by geographical descriptions. In some 
 parts of the country it dominates society ; in other parts it is 
 dominated by the regular civil administration. We hear of no 
 place so dark but that some weak prayers are uttered for the 
 Constitution ; and of no place so bright but that lurking treason 
 sometimes leaves its trail, or shows, through all disguises, its 
 sinister unrest. 
 
 The power and wants of the insurrection are not all nor chiefly 
 military. It needs not only food, clothing, arms, medicine, but 
 it needs hope and sympathy. It needs moral aid to sustain it 
 against reactionary tendencies. It needs argument to represent 
 
110 APPLICATION FOR 
 
 its origin and cairns to respect favorably before the world. It 
 needs information concerning the strength, disposition, and 
 movements of government force. It needs help to paralyze and 
 divide opinions among those who sustain the government, and 
 needs help to hinder and emluirrass its councils. It needs that 
 troops should be withheld from governmenl, and its financial 
 credit shaken. It needs that government should lack confidence 
 in itself, and become discouraged. It needs that an opinion 
 should prevail in the world that the government is incapable of 
 success, and unworthy of sympathy. "Who can help it in either 
 particular I have named, can help it as efl'ectually as by bearing 
 arms for it. Wherever in the United States a wish is enter- 
 tained to give such help, and such wish is carried to its appro- 
 priate act, there is the place of the insurrection. Since all these 
 helps combine to make up the strength of the insurrection, war 
 is necessarily made upon them all, when made upon the insur- 
 rection. Since each one of the insurrectionary forces holds in 
 check or neutralizes a corresponding government force, and 
 since government is in such extremity as not safely to allow 
 any part of its forces to withdraw from the struggle, it has no 
 recourse but to strike at whatever part of the insurrection it 
 shall find exposed. All this is implied in war, and in this Avar 
 with especial cogency. " If war be actually levied — that is, if a 
 body of men be actually assembled for the purpose of efl'ecting 
 by force a treasonable purpose — all those who perform any part, 
 however minute, or however remote from the scene of action, 
 and who arc actually leagued in the general conspiracy, are to 
 be considered as traitors." (4 Cranch, 120.) 
 
 The Constitution being paralyzed and suspended to the extent 
 described, we may notice the situation and condition of the State 
 of Ohio, where the petition states the arrest to have been made. 
 Geographically it is midway between east and west, bordered 
 on tbe south by Virginia nml Kentucky. l»oth States occupied 
 ])y contending armies, and over which the tide of war advances 
 and rccedi'S according as its fortunes incline to one side or the 
 other. On the north is Lake Erie, over which Kn^'laud and 
 Americii hoM a divided swav. In the event of a war with En- 
 
WRIT OF HABEAS CORPUS. Ill 
 
 gland, on the very verge of which we have sometimes seemed, 
 a contest for supremacy on that great lake would be inevitable. 
 Such a war is one of the hopes of the insurrection, and has 
 been schemed for with amazing audacity. A military occupa- 
 tion of either line of railroad running through Ohio, from the 
 river to the lake, would sever the North-western from the 
 North-eastern States. The population of the State is made up 
 of all the conflicting elements now lighting the blaze of civil 
 war in the country. The feelings of all are represented here. 
 None of the extremes and none of the means are Avanting. 
 That these elements should be carrying on a bloody strife in the 
 immediate neighborhood, and no strife be kindled here, is im- 
 probable in theory and untrue in fact. The insurrection in Ohio 
 is dominated by the federal authorities, and operates in dis- 
 guise, but it meets and receives constant attention. The argu- 
 ments for insurrection made in South Carolina are openly 
 repeated in Ohio. The charges there made against the govern- 
 ment and those who administer it, as a provocation for rebellion, 
 are openly made here, and with not much difference in the 
 degree of animosity. The South Carolina orators, it is true, 
 draw a different conclusion from their arguments and charges 
 from that which is drawn here from the same arguments and 
 charges. There, for the reasons stated, they declare eternal 
 hostility to the Union; here, eternal fidelity to it. The means 
 to accomplish these diverse results, however, are the same. In 
 South Carolina they propose to overthrow Lincoln and his min- 
 ions, in order to destroy the Union ; here it is proposed, in 
 order to save the Union. There and here each foot steps in the 
 other's track ; the toes all point in the same way, but the}' claim 
 to be traveling in opposite directions. It is not ver}' h'lig since 
 the marshal of this district was obliged to call for military force 
 to suppress a revolt in Noble County in this State ; still later 
 was a military force necessary to save Dayton from the ravages 
 of a similar revolt. In numerous instances in Indiana military 
 force has, been necessary. These are all fingers of the same 
 hand. Your Honor does not forget how recently the records of 
 this Court were removed, in order to save them from the con- 
 
112 APPLICATION FOR 
 
 tingencies of an invasion by insurrectionary forces ; nor hovf 
 recently, by voluntary labor, the people of this city raised em- 
 bankments and forts to protect it from the insurrection. Nor is 
 your Honor uninformed that these defenses are kept, day and 
 night, in a state of preparation, armed and supported. This 
 Court is sitting, as it were, in garrison. AVe are deliberating 
 under the protection of the guns of Newport and Covington. 
 At various parts of the State are camps. The streets of our 
 cities are patroled by military guards. Has our government 
 nothing to do that it should vex itself, and waste its means by 
 these precautions, if not known to be necessary ? 
 
 An inference is unavoidably drawn of the importance of a 
 given field of operations, by the officers placed in charge of it. 
 General Wright, who was first sent to command this Depart- 
 ment, was a man eminent for military science and qlcar abilities. 
 His undemonstrative habits and retiring manners prevented the 
 high popular appreciation which he deserved. The next com- 
 mander sent us is General Burnside, of Hattcras Inlet, of 
 Roanoke Island, of Newborn, of South Mountain, of Antietam, 
 of Fredericksburg ; a General not inferior in ability, nor second 
 to any other in the aifections of his countrymen. With him 
 comes that famous army corps, young in organization, but 
 already old in sacrifices and in glory. Next in command, for 
 Ohio, they send us the very Bayard of American volunteers, 
 whose cool heroism at South Mountain was looked upon as an 
 ample response to the high expectations formed of him from 
 his accomplishments and previous services, and Avho crowned 
 them all at Antietam Creek by performing there, with Ohio 
 troops, trained under his own eye, a feat of arms fit to be com- 
 pared with the far-famed passage of the Bridge of Lodi. If 
 the government can aftbrd such Generals for the safe places, 
 ■what can it afford to the dangerous places? 
 
 Why arc these men here? Have they, at any time since the 
 war begun, sought any other but the place of danger? They 
 are here — they are sent here for war: to lay the same military 
 hand n]tMii this insurrection wherever they can find it, in small 
 force or large force, before them or behind them, which they 
 
WRIT OF HABEAS CORPUS. 113 
 
 have laid upon it elsewhere. They are not here to cry peace, 
 when there is no peace ; not here to trifle with danger, or be 
 trifled with by it. They are patriot Generals, commanding forces 
 in the field in the presence of the enemy, constrained by their 
 love of country, and in the fear of God only, to strike. Are 
 they to fold their arms and sleep while the incitements to insur- 
 rection multiply around them, and until words shall find their 
 way to appropriate acts ? Are they to M'ait until the wires shall 
 be cut, railroad tracks torn up, and this great base of supplies, 
 this great thoroughfare for the transit of troops, this great 
 center and focus of conflicting elements, is in a blaze, before they 
 can act? Must they wait until apprehended mischief shall be- 
 come irremediable before they can attempt a remedy? Jefferson 
 Davis would answer " Yes ! " Traitors and abettors of treason 
 would everywhere answer " Yes ! " I seem to hear a solemn 
 accord of voices rising from the graves of the founders of the 
 Constitution saying "No!" And I seem to hear the response 
 of loyal and true friends of liberty everywhere swelling to a 
 multitudinous and imperative "Amen!" 
 
 I may as well here say what I have to say concerning the 
 paper presented by General Burnside. It is eminently respect- 
 ful to this Court and to the people. It is honorable to the feel- 
 ings of the General, and creditable to his judgment. Anxious 
 for the cause he represents, and needing the aff'ections of the 
 people to uphold him in his great work, it Avas natural, and it 
 was proper, that he should desire not to be misunderstood. It 
 was natural and proper that he should give his most sacred 
 assurances of his purpose not to assail liberty but to defend it. 
 But, in my judgment, it was not necessary. The General is 
 modest — I Avill not say too modest. The people know him bet- 
 ter than he seems to think. They know him by acts Avhich 
 speak louder than words. His principles and motives are as 
 visible to them as the shining track of the sun. They know 
 him as one of the first, then unheralded by fame, to bare 
 his bosom to the bolts of this war. They know him as one 
 whose political opinions and prejudices were strong against the 
 present Administration, but who subordinated these to a sense 
 8 
 
114 APPLICATION FOR 
 
 of the necessity of saving the Constitution. They know him as 
 one who has passed through perils innumerable, and has borne, 
 •with equal constancy, victory and defeat; who, in all vicissitudes, 
 has stood as a rock against which the waves of sedition dash 
 and are broken. His acts are his explanation. He needed 
 and will need no other. 
 
 I have listened with interest and attention to the comments 
 and criticisms of the eloquent advocate for Mr. Yallandigham, 
 on this paper. Considering his zeal, his ingenuity, and his duty 
 as an advocate, I am gratified to see how little he found to 
 complain of. We are entitled, since it has passed this ordeal, 
 to rest upon it as not only substantially unobjectionable, but in 
 form and language prudent. It was, of course, the duty of the 
 advocate to imply, in his criticism, if he did not state, that lib- 
 erty of speech is chiefly in danger from the Generals who fight 
 to uphold it, and not from the politicians who seek to render 
 the services of the Generals ineffectual. It was properly within 
 the arts of advocacy to drop out of sight the fact that liberty 
 of speech, with other sacred and indispensable rights, have no 
 adequate guarantee or defense except in the safety of the gov- 
 ernment ordained to establish justice and secure the blessings 
 of liberty to ourselves and our posterity. It was not in the line 
 of his duty to remind us that the only Avay now to save liberty 
 of speech is to save the government wliich was made to protect 
 it. Let us imagine that at the large meeting addressed by Mr. 
 Vallandigham, and during tlie delivery of his speech, an indi- 
 vidual had risen from the audience and commenced tlicre a 
 harangue in favor of the liberty of speech. Who, then, would 
 be the defender of free speech, the man who raised for it an 
 untimely clamor, or the constable who should seize him and sup- 
 press the disturbance ? The right of free speech is only one 
 of the rights secured by civil liberty, and, like other rights, is 
 subjected to some limitations necessary for the safety of all. 
 Civil liberty is defined to be, " the liberty of men in a state of 
 society, or natural liberty, so far only abridged and restrained 
 as is necessary and expedient for tlie safety and interest of the 
 society, state, or nation." 
 
/// 
 
 WRIT OF HABEAS CORPUS. 115 
 
 I understood the learned counsel to intimate that government 
 would receive the unanimous support of the people of Ohio, if 
 it would do nothing which displeased any of them. " Touch not 
 the liberty of the citizen, and we, in Ohio, at least, will be 
 unanimous." May it please your Honor, the liberty of the citi- 
 zen is touched when he is compelled, either by a sense of duty, 
 or by conscription, to enter the army. The liberty of the citi- 
 zen is touched when he is forbidden to pass the lines of any 
 encampment. The liberty of the citizen is touched when he is 
 forbidden to sell arms and munitions of war, or to carry inform- 
 ation to the enemy. Learned counsel is under a mistake. We, 
 in Ohio, could not be unanimous in leaving such liberties un- 
 touched. The liberty to stay at home from war is at least as 
 sacred as the liberty to make popular harangues. But since all 
 these liberties are assailed by war, they must be defended by 
 war. We, in Ohio, never could be unanimous in approving the 
 action of a government which should force one portion of the 
 population to enter the army, and allow another portion of it to 
 discourage, demoralize, and weaken that army. Unanimity, on 
 such conditionl, is impossible. But this suggestion of unanimity 
 is not quite new. The zeal of the advocate, the charming voice, 
 the stirring elocution with which it is now reproduced, does all 
 that is possible to redeem it from its early associations. But we 
 can not forget that the same thing has played a conspicuous 
 part in the history of the last few years. At the last presi- 
 dential election it happened, as it had on all preceding simi- 
 lar occasions, that a majority of lawful votes, constitutionally 
 cast, elected a President of the United States, and placed the 
 federal administration in the hands of persons agreeing in 
 opinion, or supposed to agree with that majority. It happened, 
 as it had ordinarily happened before, that the minority did not 
 agree with the majority, either as to principles or as to the 
 men selected. It claimed to believe the majority in the wrong, 
 and no minority could find provocation or excuse for being in 
 the minority, unless it did believe the majority in the wrong. 
 It is not now necessary to inquire which were right in their 
 preferences and opinions. The minority were fatally wrong in 
 
116 APPLICATION FOR 
 
 this, that they refused the arbitrament provided in the Consti- 
 tution for the settlement of such controversies. The new 
 administration must yiekl, because the minority found itself 
 unwillin;j!; to yield. The old Constitution must be changed by 
 new conditions, or run the risk of overthrow. In other words, 
 it must be overthrown in its most vital principles, by compelling 
 a majority to accept terms from a minority, accompanied by 
 threats of war, or it might be nominally kept alive by consent- 
 innf to abdicate its functions. All that the secession leaders 
 proposed was, that they should be allowed to administer the 
 government when elected, and, also, when not elected. They 
 were willing to respect the constitutional rights of elections, pro- 
 vided it should be conceded that if they were beaten they should 
 go on with public affairs the same as if they had been elected. 
 They were willing to take the responsibility of judging what 
 they would like to do, and all they asked was the liberty to do 
 it. " Touch not our liberties, and we can be unanimous ! " The 
 same old fallacy reappears in every phase of the insurrection ; 
 sometimes with and sometimes without disguise. Neither change 
 of wigs, nor change of clothing, nor presence ifor absence of 
 burnt cork, can hide its well-known gait and physiognomy. 
 The insurrection will support the government, provided the gov- 
 ernment will support the insurrection ; but the government must 
 consent to abdicate its functions, and permit others to judge 
 what ought to be done, before it can be supported. One of its 
 favorite disguises is to desire to support the government, pro- 
 vided it were in proper hands ; but to be unable to support it 
 in its present hands. The proper hands, and the only proper 
 hands for government to be in, are the hands in which the Con- 
 stitution places it. If the whole country should believe any 
 particular hands to be the most suitable, those hands would be 
 chosen. He who can not support the government on the terms 
 pointed out in the Constitution, by recognizing as the proper 
 hands for its administration the hands in which the law places 
 it, is not a friend, but an enemy of the Constitution. What he 
 means by liberty is not that qualified liliorty in whicli all may 
 share, but a selfish, tyrannical, irresponsible liberty to have his 
 
// 
 
 WRIT OF HABEAS CORPUS. 117 
 
 own way, without reference to the wishes or convenience of 
 others. This notion of selfish and irresponsible liberty is an 
 unfailing test and earmark of the insurrection. Whatever other 
 appearances it may put on, it can always be known and iden- 
 tified by this. No darkness can conceal, no dazzling light 
 transform it. Wherever it may be found, there is insurrection, 
 in spirit at least, and, according to different grades of courage, 
 in action also. This kind of liberty can not live at the same 
 time with the liberty which our Constitution was ordained to 
 secure. Government must lay hands upon it or die. Danger- 
 ous as its hostility may be, its embrace would be more fatal. 
 Its hostility may, in time, destroy the government, but any 
 government consenting to make terms with it is already 
 dead. 
 
 My eloquent friend on the other side desires to know what 
 may be General Burnside's notion concerning the people, that 
 he should fear the effect of Vallandigham's speeches ? On this 
 subject I can only exercise my privileges of observation. I 
 infer, from General Burnside's bearing and habits, that his 
 opinions concerning the people are, in an eminent degree, 
 respectful. I have an impression that he regards them and 
 theirs with affectionate and undoubting confidence. I presume 
 he thinks that if the people of Ohio can be persuaded that 
 the war is a wicked one, they will give it a much less cor- 
 dial support than they otherwise would. I presume he thinks 
 well enough of them to suppose that if they can be persuaded 
 to believe their government is striving to enslave them, they 
 will resist it, with life and means and sacred honor. I do not 
 suppose he is authorized to think so meanly of them as to 
 imagine they would not make forcible resistance to an effort to 
 enslave them. Three years ago, he might have imagined, as 
 many others of us did, that such persuasions could never go 
 beyond words, and would spend themselves in mere political 
 heats. But he has seen the result of such experiments in South 
 Carolina, Virginia, and over a large section of the Union. The 
 people yet loyal to the Constitution have intrusted to him their 
 sons, and he has seen them go down in battle on many contested 
 
118 APPLICATION FOP 
 
 fields, to counteract tlio effect of just such persuasions. I infer 
 that it has occurred to him, by this time, tliat there is danger of 
 the effects of such persuasion. It would not surprise me to learn 
 that he now looks back with regret, and wonders why the insti- 
 gators and ringleaders could not have been seized before yet 
 their treasonable words bore fruit in treasonable war ! — why we 
 ever felt justified in thinking so meanly of the people of any 
 section of the country as to suppose they could be persuaded 
 their liberties were attacked, and yet not make an appropriate 
 resistance ! Perhaps he may feel not a little distress when he 
 reflects that all this bloodshed might have been saved, but was 
 not, by a little timely vigor. I have not the least suspicion that 
 he doubts the right of government to protect the people from 
 such calamities. If it may crush treason in its blossom aud 
 fruitage, how much more in its beginning. I can imagine a 
 patriot General — for aught I know, General Burnside may be 
 the man — who should say to himself, " I, too, am one of the peo- 
 ple. These men, who fight under my command, are my neigh- 
 bors. Yonder men, who meet us in battle, are our countrymen. 
 Have not these baleful experiments of an unbridled license of 
 tongue been carried far enough? ]May we not, at length, cease 
 to trifle, and do what is possible to check these rivers of blood, 
 by obstructing the head-waters from which they flow ! All other 
 experiments having failed, may we not, as a last resort, listen 
 to the dictates of common sense?" 
 
 I do not propose to follow learned counsel in all their com- 
 ments on General Burnside's statement. I do not complain of 
 criticism. I have said enough not to leave myself open to the 
 suspicion of slighting the remarks ofTered by counsel. I am 
 now at liberty to pay that statement the practical compliment 
 of trusting it to stand on its own merits. But before I pass 
 frf)m the theme, I must acknowledge the respect paid to General 
 Burnside's patriotism. It seems to bo conceded that the purity 
 and nobleness of his motives arc un(juestionable. AVliat(M-er 
 criticism is bestowed on other things, when counsel approaches 
 an allusion to motives, ho is conscious of a jmre atmosphere and 
 a high presence. Like Moses approaching the burning bush, ho 
 
WRIT OF HABEAS CORPUS. 119 
 
 seems, as it were, to pull oif hat and shoes, and acknowledge 
 himself to be standing on holy ground. 
 
 Let us, then, turn to the petition of Clement L. Vallandigham, 
 and see how it presents him. I know nothing, and desire to 
 know nothing, of the man in this case, except what is shown by 
 the papers before us. It is neither my habit nor my pleasure 
 to incumber an argument with personalities. But I may say, 
 and I will say, that if Mr. Vallandigham be a public man, aspir- 
 ing to lead public opinion in this great crisis, and be, in fact, 
 disloyal to the Constitution, or if he be of that bat-like nature, 
 which ilits and flickers in the twilight between patriotism and 
 treason, so that it never can, at a given moment, be certainly 
 known which side he favors, then 
 
 " May shamo and dishonor sit 
 By his grave ever ; 
 Blessings shall hallow it, 
 Never 1 No, never!" 
 
 The petition exhibits and sets forth a copy of the charge under 
 which he was arrested. It shows us exactly the ground of his 
 arrest. By referring to the charge and specifications, we have 
 before us the case. It is not a little remarkable that no part of 
 the charge or specification is denied. It stands for the purpose 
 of this ini^uiry, as admitted. 
 
 [Mr. Perry read the charge and specifications as published in 
 another place.] 
 
 It appears from this that he publicly addressed a large meet- 
 ing of citizens. He was not expressing in secrecy and seclusion 
 his private feelings or misgivings, but seeking publicity and in- 
 fluence. The occasion and circumstances show the purpose to 
 have been to produce an effect on the public mind, to mold 
 public feeling, to shape public action. In what direction ? The 
 charge says, by expressing his sympathies for those in arms 
 against the Government of the United States, by declaring dis- 
 loyal sentiments and opinions. He declared the war to be wicked 
 and cruel, and unnecessary, and a war not waged for the pres- 
 ervation of the Union : a war for crushing out liberty and erect- 
 
120 APPLICATION FOR 
 
 ing a despotism. "What is tins but saying that those who fight 
 against the United States arc in the right, and that it would be 
 cowardly and dishonorable not to fight against the United States ? 
 In what more plain or cogent language could he urge his au- 
 dience themselves to take up arms against their government? 
 If those who heard him could not be incited to fight against a 
 government by persuading them it was making an unjust and 
 cruel Avar to crush out liberty, how else could he expect to in- 
 cite them ? If he did not hope to persuade them to join their 
 sympathies and efforts with tlic enemies of the United States, 
 by convincing them that these enemies are in the right, fight- 
 ing and sufl'cring to prevent the overthrow of liberty, standing 
 up against wickedness and cruelty, what must he have thought 
 of his audience ? AVhat else but the legitimate result of his 
 argument can we impute fairly as the object of his hopes ? To 
 whatever extent they believe him, they must be poor, dumb dogs 
 not to rally, and rally at once, for the overthrow of their OAvn 
 government, and for the support of those who make war upon 
 it. But he did not leave it to be inferred. He declared it to 
 be a war for the enslavement of the whites and the freedom of 
 the blacks. Which of the two was, in his opinion, the greater 
 outrage, he does not appear to have stated. It is one of the 
 unmistakable marks of the insurrection, by which it can always 
 be identified, that its declarations for liberty are for a selfish 
 and brutal liberty, which includes the liberty of injuring or dis- 
 regarding others. If his white audience were not willing to be 
 enslaved, that is to say, not willing to endure the last and most 
 degrading outrage possible to be inflicted on human nature, they 
 must, 80 far as they believed him, resist their own government. 
 If he himself believed what he said, he must take up arms to 
 resist the government, or stand a confessed poltroon. A public 
 man, who believes that his government is guilty of the crimes 
 he imputed, and will not take up arms against it, is guilty of 
 unspeakable baseness. If liis audience believed what he told 
 tlu'in, they must have looked upon advice not to take up arms as 
 insincere or contemptible. No public man, no private man, can 
 make such charges and decently claim not to mean war. All 
 
/^ 
 
 WRIT OF HABEAS CORPUS. 121 
 
 insurrections have tlicir pretexts. The man who furnishes these 
 is more guilty than the man who believes them and acts on them. 
 If the statements of Vallandigham were true, the pretexts were 
 ample, not merely as pretexts, but as justification of insurrec- 
 tion. They were more : they were incitements which it would 
 be disgraceful to resist, and which human nature generally has 
 no power to resist. The place where such things are done is 
 the place of insurrection, or there is not and can not be a place 
 of insurrection anywhere. If these laboratories of treason are to 
 be kept in full blast, they will manufacture traitors faster than our 
 armies can kill them. This cruel process finds no shelter under the 
 plea of political discussion. Whatever might be said about ballots 
 and elections, the legal inference is that it is intended to pro- 
 duce the results which would naturally flow from it. If the 
 President, with all the army and navy, and his " minions," is at 
 work to overthrow liberty and enslave the whites, every good 
 man must fear to see that army victorious, and hail its disasters 
 with joy. Every good man must strike to save himself from 
 slavery now while he can. The elections are far off, and may be 
 too late. It can not be claimed that the motive Avas to influence 
 elections, because the argument does not fit that motive. It fits 
 to insurrection, and that only. He pronounced General Orders 
 No. 38 to be a base usurpation, and invited his hearers to resist 
 it. How resist it ? How could they resist it, unless by doing 
 what the order forbade to be done ? 
 
 What was there to be complained of except by persons wish- 
 ing to do, or to have done by others, the acts by that order pro- 
 hibited ? He invited to resist the order. "The order thus to be 
 resisted, prohibited the following acts, viz.: Acts for the benefit 
 of the enemies of our country, such as carrying of secret mails ; 
 writing letters sent by secret mails; secret recruiting of soldiers 
 for the enemy inside our lines ; entering into agreements to pass 
 our lines for the purpose of joining the enemy; the being con- 
 cealed within our lines while in the service of the enemy; 
 being improperly within our lines by persons who could give 
 private information to the enemy ; the harboring, protecting, 
 concealing, feeding, clothing, or in any way aiding the enemies 
 
122 APPLICATION FOR 
 
 of our country ; the habit of tloclaring sympathies for the enemy ; 
 treason. These are the things prohibited in Order No. 38, 
 \vhich Mr. Vallandigham invited his audience to resist. " The 
 sooner," he tohl them, " the people inform the minions of 
 usurped power that they will not submit to such restrictions on 
 their liberties, the better." The " minions" here referred to were 
 the commanding General of the Department and others charged 
 with official duties under their own government. The "liberties" 
 not allowed to be restricted were liberties to aid the enemies 
 of the United States. He declared his own purpose to do what 
 he could to defeat the attempt now being made to build up a 
 monarchy upon the ruins of our free government. This resist- 
 ance could mean nothing but resistance to his own government, 
 which he had before declared to be making attempts to enslave 
 the whites. These appeals to that large public meeting are 
 charged to have been made "/or the purpose of iveakening the 
 potver of his own government in its efforts to supjjj'ess an inilaiv- 
 ful rchcUion" all of which opinions and sentiments " he well 
 knew did aid, comfort, and encourage those in arms against the 
 government, and could but induce in his hearers a distrust of 
 their own government, and sympathy for those in arms against 
 it, and a disposition to resist the laws of the land.'^ 
 
 Not one syllable of all this is denied, and yet the arrest is 
 complained of as unconstitutional. 
 
 It must be so apparent as to need no further demonstration, 
 that an arrest of some kind had l)ecome necessary for the pre- 
 servation of public decency. Either General Burnsido and his 
 soldiers should have 1)een arrested, or A^illandigham. The only 
 open (juestion is, which was the proper party, and whether a 
 mistake was made as to the man. If Vallandigham was right, 
 General Burnside and every other officer of the army, or navy, 
 every member of the Cabinet, even the Presi<lent himself, should 
 be forthwith put under arrest. The Federal Congress, which 
 voted supplies for the army engaged in such a foray on the 
 rights and interests of mankind, ought to be promptly dispersed. 
 On the other hand, if the President and Congress, and the Gov- 
 ernment of the United States are not all criminals, if our Gen- 
 
/^ 
 
 WRIT OF HABEAS CORPUS. 123 
 
 erals and soldiers are not all minions and pimps of a wicked 
 scheme to enslave the people. Vallandigham ought to have been 
 arrested. The acts which General Burnside was sent here to 
 perform, and the acts of Vallandigham, considered as separate 
 acts, or as lines of action, could not possibly go on together. 
 They were, in their essence and nature, incompatible things, and 
 mutually destructive of each other. If General Burnside might 
 have arrested Jefferson Davis, and held him a prisoner, why 
 not Clement L. Vallandigham ? If we suppose the Constitution 
 was intended to authorize two such incompatible and mutually 
 destructive lines of action at the same time, we impute an in- 
 credible absurdity. If it authorizes the drafting of one part of 
 the population, the organizing of armies, and marching to battle 
 to suppress insurrection, it can not at the same time authorize 
 the other part of the population to thwart, defeat, and annul 
 their efforts. On the other hand, if it authorize a portion of the 
 people to attack, and resist, and discredit the government, it 
 can not require the other portion to make war to defeat them. 
 If the object of the Constitution was to provide for its own 
 destruction and protect its enemies, the arrest of Vallandigham 
 was a mistake : Burnside Avas the man. But if the object was 
 to provide for the safety of the Constitution, and protect its 
 friends, no mistake has been made. Vallandigham is the man 
 to be arrested. It never could have been intended to allow 
 them both to take the field at the same time. 
 
 It is claimed that, since Vallandigham was not a military man, 
 this arrest should have been made by the civil authorities. I 
 understand the argument of learned counsel to be placed on this 
 ground. Beyond or in addition to the ordinary arrests by civil 
 process, none other are allowed under the Constitution, except 
 such as are authorized by military law. Military law, he shows 
 us, consists chiefly in the Rules and Articles of War, and applies 
 only to persons engaged in the military service of the Government. 
 The objection, therefore, is not one which relates to time, place, 
 or circumstance. It denies authority to make such arrests at 
 any time, in any place, or under any circumstances. I am not 
 aware that language can state it more broadly than it was stated 
 
124 APPLICATION FOR 
 
 by learned counsel. Any arrest or capture made by the army, 
 of persons not in the military service, or so connected with it as 
 to be subject to the rules of military law, is, he argues, an un- 
 lawful arrest. All such arrests must be discharged on Habeas 
 Corpus, unless it happen that Habeas Corpus has been sus- 
 pended. A state of war, civil or other, does not, of itself, he 
 tliinks, suspend Habeas Corpus. It is a part of his theory that 
 Habeas Corpus has not yet been suspended. 
 
 The unavoidable result of this argument is, if it be the law, 
 that no prisoner has been taken during the Avar, who could not 
 have had his discharge on Habeas Corpus. Tiie prisoners taken 
 by General Burnside at Roanoke Island, and by General Grant 
 at Fort Donelson, were dischargeable on Habeas Corpus. Gen- 
 eral Banks can make no such arrests in Louisiana ; Rosecrans 
 none in Tennessee; Grant none in Mississippi; Hooker none 
 in Virginia ; Hunter none in South Carolina. Most of the pris- 
 oners seized by these Generals are citizens of the United 
 States, not engaged in the military or naval service thereof, nor 
 called into actual service as a part of tlie militia. They could 
 copy the form of the present petition, and conscientiously make 
 oath to every material fact stated in it. It may be said that in 
 those cases the prisoners taken were taken in the act of war, 
 flagrante deliclu. But if there was no authority to take them, 
 under any circumstances, the fact supposed can make no differ- 
 ence. In order to rest a distinction on the fact of flagrant war, 
 ■where it exists, it must be admitted that in some cases the au- 
 thority does exist, which being admitted, the whole proposition 
 goes into collapse and disappears. The inquiry then comes 
 down to an incpiiry as to time, place, and circumstance, which is 
 a very distinct and different inquiry. 
 
 In truth, however, much of the supposed difTerence in cir- 
 cumstances does not exist. As Generals commanding different 
 armies f»f the Unite(l States, all in the lirld fur jmrposes of war, 
 and engaged in actual wai-, the authority eonferretl on them by 
 the Constitution must be the same. One may be limited by 
 special instructions, another not ; but without reference to such 
 limitation, their general authority and duties as Generals must 
 
\yRIT OF HABEAS CORPUS. 125 
 
 "be equal. The exigencies of war may press sometimes more 
 heavily on one, sometimes on another. But if this is allowed 
 to make a difference in the general authority exercised, the 
 question is reduced to a question of circumstances, which learned 
 counsel by no means admits. Nor does his proposition allow 
 of an exception, if it happen anywhere that the civil adminis- 
 tration, and the judiciary as a part of it, be forcibly obstructed 
 and overthrown. This again would reduce it to a question of 
 circumstances. His argument is that this kind of arrest is abso- 
 lutely forbidden by the Constitution ; and being so forbidden, 
 of course no circumstance can make it lawful. The denial is 
 far-reaching and fun<lamental. 
 
 It follows, as a necessary corollary from the proposition, that, 
 if at any time, in any part of the United States, an insurrection 
 can make so much head as to obstruct or overthrow civil admin- 
 istration, it will have gained impunity. If those engaged in it 
 may not be arrested by the army sent against it, they may not 
 be shot. If they can not be persuaded, nothing can be done. 
 The application of. restraint is imprisonment ; and unless mili- 
 tary imprisonment be allowed, no imprisonment can take place. 
 For in the case supposed, the civil administration is no longer 
 practicable. It may be said that in such instances Habeas Cor- 
 pus must be suspended. This does not meet the argument. We 
 are inquiring what arrests may be lawfully made. Suspension 
 of Habeas Corpus makes no arrest lawful which was before un- 
 lawful. It merely suspends one remedy for unlawful arrests. It 
 does not necessarily suspend other remedies, sucli as actions for 
 false imprisonment and trespass. These are usually provided for 
 by acts of indemnity which are not needed for lawful arrests. In 
 England, these acts of indemnity may be passed by Parliament 
 after the Avar is over ; for there is no constitutional proliibition 
 against ex post facto laws. But here an indemnit}- act must pass he- 
 fore the imprisonment, to be available as an indemnity. The ques- 
 tion now under consideration is, what acts are lawful and need no 
 indemnity ? What need can there be to suspend Habeas Corpus, 
 when the civil tribunals, which alone should issue such writs, are 
 already overthrown ? The question is, whether every act of bat- 
 
126 APPLICATION FOR 
 
 tie or of war by our soldiers against an insurrectionary force, is 
 a civil trespass, and needs an act of indemnity ? For if our 
 soldiers may kill their enemies, they may capture them. Re- 
 duced to its last analysis, it is a question whether it is lawful, 
 by force, to put down an uidaAvful and forcible opposition to the 
 civil authorities ; whether it is an unconstitutional act to enforce 
 the Constitution. If the gentleman's proposition be true, must 
 it not be also true tliat every forcible attempt to overthrow the 
 Constitution has the guarantee of that instrument to protect it 
 from harm and insure its success. . It is attacked by force, and 
 its friends may not strike without committing trespass. 
 
 Let us examine the grounds on which he founds his propo- 
 sition. He cites several well-known provisions of the Constitu- 
 tion : '' The trial of all crimes, except in cases of impeachment, 
 shall be by jury ; and such trial shall be held in the State where 
 the said crimes shall have been committed." . . " The right of the 
 people to be secure in their persona, houses, papers, and effects, 
 against unreasonable searches and seizures, shall not be violated; 
 and no warrants shall issue but upon probable cause, supported 
 by oatii or affirmation, and particularly describing the place to 
 be searched, and the persons or things to be seized." . . . 
 " No person shall be held to answer for a capital or other infam- 
 ous crime, unless on a presentment or indictment of a grand 
 jury, except in eases arising in the land or naval forces, or in the 
 militia, when in actual service, in time of war or. public danger ; 
 nor shall any person be subject, for the same offense, to be twice 
 put in jeopardy of life or limb ; nor shall be compelled, in any 
 criminal case, to be a witness against himself, nor be deprived of 
 life, liberty, or property without due process of law ; nor shall 
 private property be taken for public use, witliout just compen- 
 sation ;" and some others. 
 
 These arc parts of the Constitution, very valuable parts, but 
 not the only ones. If the Constitution had provided no moans 
 of enforcing the rights here mentioned it would have been very 
 ineffectual to secure them. Its guarantees of these rights might 
 or might not have been worth the paper on which they were 
 written. The argument of learned counsel leaves the Constitu- 
 
/6- 
 
 WRIT OP HABEAS CORPUS. 127 
 
 tion precisely ■where the framcrs of it -woukl have left it, if they 
 had put in it no otlicr clauses but these. I ask him what is to 
 be done if it happen that by civil war the courts are overthrown, 
 juries dispersed, and, in the State where the crime was com- 
 mitted, all civil administration is rendered impossible? I ask 
 him what is to be done if it happen that throughout any large 
 portion of the United States the Constitution, and all the officers 
 under it, all its recognized legal processes and tribunals, be forci- 
 bly overcome and defied; and if those claiming the protection 
 of the Constitution are, by unlawful violence there, 7iot allowed 
 to be secure in their persons, houses, papers, and effects against 
 unreasonable searches and seizures ? What if the enemies of 
 the Constitution, in arms against its authority, do attack and 
 seize its friends Avithout probable cause, without charges upon 
 oath, and without warrant? "What if they do deprive them of 
 life, liberty, or property without due process of law, and take 
 private property for public use without due compensation? In 
 a word, what if the enemies of the Constitution suppress, expel, 
 or demolish every vestige of constitutional administration, and 
 substitute therefor war — war by large armies, war by small 
 bands, war by individual assassinations, hatreds, revenges, physi- 
 cal force, war everywhere, so that not one shred or patch of the 
 Constitution remains in that whole region ? The question to be 
 answered here is, what is to be done in such a state of affairs? 
 I have listened to the argument of my learned friend with re- 
 spectful attention. I have wandered witli him over many fine 
 fields of declamation, all about liberty and the Constitution, but 
 I find no answer. 
 
 Unfortunately the condition of the country urgently requires 
 an answer. I find that answer in other parts of the Constitu- 
 tion. The instrument would have been nugatory, an idle and 
 perhaps cheerful composition, but wholly unworthy of its framers, 
 if it could furnish no answer. If it could furnish no answer, we 
 should find ourselves involved in a situation unprovided for, 
 never contemplated as possible, and one which would be a la-w 
 unto itself. Being without law for the situation, we should 
 rightfully act upon the necessity before us. But my argument 
 
128 APPLICATION FOR 
 
 is that tlie Constitution does provide an answer — a well-ex- 
 pressed and adequate answer. That answer, in substance, is, to 
 meet war with Avar. I refuse to be dazzled by glittering frag- 
 ments of a broken Constitution, or to follow their illusory lights 
 into a bottomless bog of anarchy. On behalf of the people I 
 demaml the whole Constitution. On that rock we found our 
 liberty, and the gates of hell shall not prevail against it. 
 
 It is not necessary to repeat here the numerous passages of 
 the Constitution intended to establish justice and secure liberty. 
 They do not purport to create, but to guard and secure. Justice 
 existed before, but the concern of the framers of the Constitu- 
 tion was to "establish" it. Domestic tranquillity was an object 
 of general desire, yet government was needed to "insure" it. 
 The common defense might be, indeed, had been, conducted by 
 them successfully without a constitution, but they deemed it 
 expedient to " provide " for it. Liberty had been, by them, suc- 
 cessfully asserted, but they felt the necessity of a government to 
 "secure" its blessings. Therefore they did "ordain and establish 
 this Constitution of the United States of America." Its framers 
 understood perfectly that, without it, liberty might exist, but it 
 would have no establishment or security. They would have 
 wasted their many weary years with profitless endeavor, to 
 behold, at last, the object of desire "speed away on cherub 
 pinions — the guide of homeless winds and playmate of the 
 waves." 
 
 IIow, then, did they secure liberty? 
 
 In the order of securities wc find, first, certain declaratory 
 clauses. It is one step toward establishing and securing rights 
 to agree upon tlieni and declare tliem. Tlie citizens of each 
 State shall be entitled to all the privileges and immunities of 
 citizens of the several States. Private property shall not be 
 taken for public use without due compensation. No person 
 shall be deprived of life, liberty, or property without due proc- 
 ess of law, and other clauses before quoted. It is observable 
 that in these declarations are embraced rights of a diflerent 
 grade — rights called absolute and indefeasible, and rights merely 
 conventional or secondary. But they are all declared with the 
 
WRIT OF HABEAS CORPUS. 129 
 
 same solemnity, and secured by the same guarantees. Materials 
 of different degrees of solidity and costliness ^vere fitted to their 
 respective places in the edifice. The whole sti-ucture was nec- 
 essary for the purpose contemplated, and all its parts and 
 details were necessary to the structure. They do not tell us 
 which of them could be taken away without danger to all. 
 
 It was necessary to go further and provide for the enforce- 
 ment of these declarations. The first step was to provide for 
 electing a chief executive officer, to preside over and enforce 
 the laws. "Without him the whole machinery would fail. Except 
 in the manner there provided, there can be no President clectqd. 
 But an election of President implies other things. When elected, 
 he is to perform duties and exercise his faculties. Another 
 practical security is provided by ordaining the election of a 
 legislative body, and prescribing its functions, and declaring 
 " That this Constitution, and the laws of the United States 
 which shall be made in pursuance thereof, and all treaties made 
 or which shall be made under the authority of the United States, 
 shall be the supreme law of the land ; and the judges in every 
 State shall be bound thereby, any thing in the constitution 
 or laws of any State to the contrary notwithstanding." But, 
 further than this, the Constitution provides for courts, judges, 
 and marshals, to adjudicate and enforce the laws. It does not 
 stop there. In all ages of the world men have been found not 
 obedient to judicial decisions ; sometimes numerous and strong 
 enough to overthrow and defy all the processes of civil admin- 
 istration. The Constitution does not fail to provide for such an 
 emergency. It crowns the guarantees before offered by provid- 
 ing for an adequate physical force to overcome all opposition. 
 It speaks of a well-regulated militia as necessary for the secu- 
 rity of a free state. It provides authority to " raise and support 
 armies, to provide and maintain a navy, and to declare war." It 
 provides for organizing, arming, and disciplining the militia; for 
 calling forth the militia to execute the laws of the Union, sup- 
 press insurrections, and repel invasions. It makes the Presi- 
 dent " commander-in-chief of the army and navy of the United 
 9 
 
130 APPLICATION FOR 
 
 States, and of the militia of the several States when called into 
 the actual service of the United States." Thus placing at his 
 disposal the entire resources of the country, it requires of him, 
 before entering upon his office, to invoke the sanction of Al- 
 mighty God, and clothe himself with an oath : '" I do solemnly 
 swear (or affirm) that I will faithfully execute the office of Presi- 
 dent of the United States, and will, to the best of my ability, 
 preserve, protect, and defend the Constitution of the United 
 States." 
 
 The President is no longer a free man in the chimerical sense 
 of freedom which we hear so much of. But he is not less free 
 than other citizens, who are all bound to support the Constitu- 
 tion. It is not one of the liberties secured by the Constitution, 
 to select some particular right there guaranteed, to maintain it 
 as distinct from and in opposition to the rest, or to hold fast to 
 that one and let go the rest. Each holds his rights upon one 
 ineradicable condition, that he shall, to the extent of his ability, 
 maintain and defend every part of the Constitution. lie can 
 not throw off his allegiance, defy the government, make war 
 upon it, and, at the same time, claim its protection. When he 
 lifts his arm against the Constitution, the arm may be cut off 
 without giving him a right to complain of cruel and unusual 
 punishments. When he lifts his voice against the liberties of 
 his countrymen, his voice may be silenced in the interests of 
 freedom of speech. When he arms himself to assail the defend- 
 ers of the Constitution, those arms may be taken from him in 
 the interest of the general right to bear arms. When he makes 
 of his house a shelter for traitors, and barricades it from the 
 approach of patriots, it may be broken open and searched in the 
 general interest of freedom from unreasonable searches and 
 seizures. 
 
 In the civil administration different remedies are applied, 
 each after its kind. A writ of capias seizes the body, but it 
 does not violate the constitutional guarantees of personal lib- 
 erty ; an attachment lays hold of goods, but does not violate 
 property rights ; a replevin lircaks open houses, but does not 
 
WRIT OF HABEAS CORPUS. 131 
 
 conflict Tvitli tlie rit^lit to be protoctcd from unreasonable searclies 
 and seizures. The common law furnishes redress in some in- 
 stances ; equity in others ; maritime law in others. Each of 
 these is so far exclusive as, when properly appealed to, not to 
 be interfered with by any other; and, while in progress, to be 
 governed exclusively by its own rules. War is the last resort, 
 but Avhen properly appealed to, its processes are due and reason- 
 able processes, and, like the rest, must be allowed to work out 
 results exclusively by its own rules. 
 
 *' The body of a nation can not, then, abandon a province, a town, 
 or even a single individual who is part of it, unless compelled to it 
 by necessity, or indispensably obliged to it by the strongest reasons, 
 founded on the public safety. 
 
 " Since, then, a nation is obliged to preserve itself, it has a right 
 to every thing necessary for its preservation. For the law of nations 
 gives us a right to every thing without which we can not fulfill 
 our obligation; otherwise it would oblige us to do impossibilities, or 
 rather, would contradict itself iu prescribing us a duty, and, at the 
 same time, debarring us of the only means of fulfilling it." 
 
 " A nation or State has a right to every thing that can help to ward 
 off imminent danger, and keep at a distance ichatevcr is capable of 
 causing its ruin, and that from the very same reasons that establish its 
 right to the things necessary to its preservation.^' (Vattel's Law of 
 Nations, 5, 6.) 
 
 The right of nations here described has been fully preserved 
 to the United States by their Constitution, so far as the question 
 nn<ler debate is affected. Tlie power to make war is given with- 
 out limitations. So far as war may be a means of preservation, 
 or for warding oif imminent danger, and keeping at a distance 
 whatever is capable of causing its ruin, the nation is safe. The 
 rights of war are as sacredly guaranteed as trial by jury, or 
 personal liberty, or any other right whatever. The President 
 can not claim to have preserved, protected, and defended the 
 Constitution, to the best of his ability, until he shall have 
 used all the ability given him by the utmost rights of war. He 
 who declares he is willing to support the war, provided it creates 
 
132 APPLICATION FOR 
 
 no disturbance, only declares lie is willing to support it, provided 
 it shall be so couducted as to be really something else, and not 
 ■war. 
 
 The Constitution does not define the meaning of Habeas Cor- 
 pus, or trial by jury, or liberty, or war. They were to be ascer- 
 tained elsewhere. I have before shown a definition of civil lib- 
 erty. One of its conditions is an abridgment of natural liberty. 
 Liberty was not abridged of the right to call in war to her de- 
 fense, but she could not be endowed with a capacity for impos- 
 sibilities. She could not require of human nature that which 
 would be impossible to God himself, repose and commotion, peace 
 and war at the same time. War could do little for Liberty, if she 
 should hang forever sobbing on his neck, pinioning his arms, 
 and holding; him back from being War indeed. No ! in this 
 solemn time of domestic sorrow and of public peril, it is little 
 better than sacrilege thus to potter with the meaning of words. 
 By liberty was intended such liberty as was possible to mankind. 
 By Avar was intended not a hollow pretext of war, but a lifting 
 high of the red right hand of avenging justice. A thorough, 
 condign, effectual laying hold of enemies ; a summary breaking- 
 up of their hiding places, and a terrifying, deathly pursuit, until 
 they shall cease to exist, or cease to be enemies. 
 
 In Scott's Military Dictionary, a recent work, which, he says, 
 was not prepared in view of existing disturbances, he states the 
 following rule, p. 273 : 
 
 •' With regard to the requisition of military aid by the civil magis- 
 trate, the rule seems to be that when once the magistrate has charged 
 the military officer witli the duty of suppressiii;^ a riot, the exci-ution 
 of that duty is wholly confided to the judgment and skill of the. mili- 
 tary officer, who thenceforward arts indcpemJcntli/ of the magistrate 
 viiti'l the arrvicc rrqulrcd in fitJhj performed. Tlie magistrate can not 
 dictate to the officer the mode of executing the duty ; and an officer 
 •would desert his duty iC ho siibiiiittcd to receive any such orders 
 frtnn the maji;istrate. Neither is it necessary for the ma<:istrate to 
 acconq)any the (»fficcr in the execution of liis duty. The learniui:^ on 
 these i)oints may be gathered IVom the charge of Mr. du>lice Little- 
 
WRIT OF HABEAS CORPUS. 133 
 
 « 
 
 dale, to the jury, in the trial of the Mayor of Bristol for breach of 
 duty in not suppressing the riots at that city in 1831." 
 
 I have spoken of militai-y law, Avhicli is claimed, by learned 
 counsel on the other side, to be a laAV for military men. This 
 law is often mistaken for or confounded with martial law, but 
 the terms are very far from convertible. Martial law is often 
 clefined as no law at all ; but this definition is rather an objur- 
 gation against than a description of it. I venture to define 
 martial law to be the rule of action adopted by all nations, and 
 at all periods of the world, by which, in times of war, to guard 
 against dangers that often arise, and by reason of the necessity 
 of it, such discretion is given to the military commander, mea- 
 sured by the requirements of the situation, as shall insure to 
 his force the best cliances of success. It is that established 
 practice, that common law of nations, by which, under the com- 
 pulsion of right reason, when they have called an army into tlio 
 field for war, and confided to it the safety of the commonwealth, 
 they allow it, without hinderance or interruption, to perform its 
 work. 
 
 Counsel for petitioner reads to us many authorities to show 
 that military law applies only to military men. Beyond this 
 his argument is comprised either in a broad denial that martial 
 law means any thing more than is intended by miUfarjj law ; or, 
 if it does, an equally broad denial that it does or can exist in 
 Great Britain or the United States. Ilis limitation of the mili- 
 tary law, so called, appears to me rather more narrow than the 
 authorities justify ; but for the purposes of this argument, I 
 have no controversy with hiiu there. Let him take for granted 
 all that I understand him to claim, as to the rule concerning' 
 military law. The questions remain whether martial law or the 
 laws of war, or the rights of war — phrases interchangeably 
 used by the Supreme Court of the United States, in discussing 
 the theme, and by writers — mean more than military law ; 
 and if they mean more, whether they can exist in Great Britain 
 or the United States. On both these questions counsel for peti- 
 tioner takes the negative. If I can show him to be wronir here. 
 
134 APPLICATION FOR 
 
 I shall hnve defeated his whole argument. For, although his 
 argument is not confined to these in(|uiries, all other parts of 
 it depend upon them. 
 
 I have already cited Vattel to show that the same rules or 
 laws of war apply, or ought to apply, to civil as to foreign war. 
 The only doubt is, whether persons in insurrection against their 
 own government, can rightfully claim the same treatment applied 
 in mitiixation of the rigors of war to foreign enemies. The most 
 merciful rule is the one to which Yattel inclines for reasons of 
 expediency and humanity. It is the rule applied by our own 
 government in this war. It is quite unnecessary to cite authori- 
 ties to show that in foreign war the authority of a General is 
 not limited to the military force under his command. During 
 the Peninsular war, Wellington governed Spain and Portugal, 
 and afterward a part of France, in the exercise of well-known 
 and commonly-acknowledged rights of war. In our war with 
 Mexico General Scott promulgated and enforced a plan for the 
 government of Mexico. Some debate was raised at home 
 whether the Constitution conferred so much power on a General. 
 It was acquiesced in and approved. There could be no doubt 
 of the authority to make war, and this was a necessary incident. 
 Under the same rule Rosecrans controls civil administration in 
 Tennessee, and Banks in Louisiana, and Curtis did in Missouri. 
 Doubtless persons captured in flagrant acts of treason may be 
 hung. As the greater includes the less, the right to hang im- 
 plies the right to inflict lesser evil. Tliey are, therefore, allowed 
 to be treated as prisoners of war. I am now speaking of the 
 existence of rights of war, laws of war, or martial law, and show- 
 ing them not to be limited to military men, and to be much 
 more comprehensive tha«i military law — indeed, entirely distinct 
 and different from it. I am not now making the application to 
 Vallandigham. That is a question of circumstances. I am 
 replying to the argument which denies the existence or appli- 
 cation of such a law under any circumstances. 
 
 To maintain his denials counsel cites many English authori- 
 ties — among them Sir Matthew Hale — and he claims, as the 
 result of those authorities, that martial law has been definitively 
 
WRIT OF HABEAS CORPUS. 135 
 
 abanrlonod and prohibited in England. These anthorities do, 
 some of them, show that certain gross abuses, which were prac- 
 ticed by the Stuarts in Enghmd, under the pretext and name of 
 martial law, but which found as little justification under martial 
 law as under any other, have been prohibited. Perhaps he could 
 show, with smaller research, that measures have been taken to 
 prevent a repetition of the infamous and bloody assizes of Jef- 
 feries ; but this would not go very far to discredit trial by jury. 
 Trial by jury yet exists in England ; and martial law is applied 
 there as often as occasion requires. If any thing may be fairly 
 assailed by holding it responsible for abuses, the judiciary would 
 be one of the first institutions of government to fall. Lookinjr 
 over the history of past ages, it is apparent that military men 
 would have some difficulty in establishing a claim to a leader- 
 ship in the abuses inflicted on mankind. Most of the historical 
 struggles for liberty have resulted from a real and natural antag- 
 onism between peoples and their rulers ; rulers claiming, by some 
 heritable superiority, to govern, and people feeling the govern- 
 ment mainly in its oppressions. Whether judges or military men 
 are most responsible for the cruelties inflicted in such struggles 
 may be doubted. From a somewhat patient reading of law-books,. 
 I am, however, prepared to admit that judges have felt much less 
 alarm and indignation at stretches of power practiced by them- 
 selves, than they have felt at the assumption of undue power by 
 military men. If there were no history except what we find in 
 law-books, judges would have a decided advantage over Generals. 
 There are, also, specimens of popular forensic eloquence, origin- 
 ally delivered as the voice of the people against despotic govern- 
 ments, (some of them quite out of hearing), Avhich never lose 
 their attractions. We rather like to hear them launched against 
 our own government, that is to say, ourselves. Tlie difficulty of 
 playing both people and tyrant, at the same time, is scarcely 
 appreciable in those popular amusements. 
 
 I am relieved from stating my own conclusions concerning the 
 numerous English authorities cited, by finding an examination 
 of them, and an opinion concerning them, by Mr. Attorney- 
 General Gushing. (Opinions of Att'ys Gen'l U. S., vol. 8, p. 3G5.) 
 
136 APPLICATION FOR 
 
 The Attorney-General, after remarking upon English authori- 
 ties, sums up: 
 
 " In fine^ (lir common Jato anthoritirsand commentators afford no clue 
 to vhat martial laio, as understood in England, really is; hut much 
 light is throion itpon the subject by debates in Parliament, and by fads 
 in the executive action of government ^ 
 
 This is a report to his own government by one of the most 
 learned and laborious Attorneys-General the United States ever 
 had. lie quotes Sir Mattliew Ilalc, also : 
 
 "IMartial law is not, in truth and reality, a law, but somethina: in- 
 dulged rather than allowed as a law : the necessity of trovernniciit, order, 
 discipline in the army, is that only which gives these laws a counte- 
 nance." (Hist. Com. Law, p. 39.) 
 
 Mr. Attorney-General says : 
 
 " This proposition is a mere composite blunder, a total misapprehen- 
 sion of the matter. It confounds martial law and laio military: it 
 ascribes to the former the uses of the latter ; it erroneously assumes 
 that the government of a body of troops is a necessity, more than that 
 of a body of civilians, or citizens. It confounds and confuses all the 
 relations of the subject, and is an apt illustration of the incomplete- 
 ness of the notions of the common-law jurists of England in regard 
 to matters not comprehended in that limited branch of legal science." 
 
 *' Even at a later day, in England, when some glimmerings of light 
 on the subject began to appear, the nature of the martial law remained 
 without accurate appreciation in Westminster Ilall." 
 
 He cites the case of Grant ik Sir Charles Gould, (2 TI. "Black- 
 Btonc, 98), decided by Lord Loughborough, who said : " The 
 essence of martial law consists in its l)cing a jurisdiction over 
 all mililnrii persons, in all circumstances." And because mili- 
 tary men are triable for many offenses, and have their personal 
 rights, f<ir the most part, regulated by law — "Therefore," ho 
 gays, "it is totally inaccurate to state martial law as having any 
 place whatever in the realm of Great Britain.' 
 
WRIT OF HABEAS CORPUS. 137 
 
 Mr. Attorney-Gcncro.l says : " This is tofalli/ inaccurate,'' and 
 explains why. 
 
 Mr. Attorney-General then quotes Stephens's commentaries, 
 vol. 11, p. 602, note. 
 
 " 3Iarti;il law," says Stephens, " may be tlefincd as the law, whatever 
 it may be, which is imposed by military power ; and has no place in 
 the institutions of this country, (England), unless the Articles of War, 
 established under the acts just mentioned, be considered as of that 
 character." 
 
 The Attorney-General proceeds: 
 
 " Here again is pitiable confusion ; for the Articles of War are 
 not a law 'imposed by the military power,' nor is martial law con- 
 fined in its origin to the military power as the source of its existence." 
 
 The confusion among English lawyers, remarked by the At- 
 torney-General, will account, probably, for sonic inconsistencies 
 of expression among English statesmen on this subject, though 
 the action of English statesmen is suflficiently clear and consist- 
 ent. The question whether martial law has " a place in the 
 realm of Great Britain," as denied by Lord Loughborough, or 
 "a place in the institutions of England," as denied by Mr. 
 Stephens, is purely a question of historical fact, and history is 
 against them. Nor is the question open to doubt. Martial law, 
 such as I claim, has been unquestionably adopted and enforced 
 in Great Britain and her provinces as often as any occasion 
 has been felt for it. I may here dismiss the English authori- 
 ties. 
 
 Mr. Attorney-General Gushing, in his opinion, makes a most 
 learned examination of the topic, and says : 
 
 " Looking into the legislation of other countries, we shall find all 
 the legal relations of this subject thoroughly explained, so as to 
 furnish to us ideas at least, if not analogies, by means of which to 
 appreciate some of its legal relations in the United States." 
 
 These legal relations appear to be better defined in France 
 than elsewhere. Three conditions or states are there provided 
 
138 APPLICATION FOR 
 
 for. 1. Peace. In the state of peace, all military men are sub- 
 ject to the law military, leaving the civil aniliorily untouched, in 
 its own sphere, to govern all persons, whether civil or military, 
 in class. 2. The state of war. When it exists, the military 
 authority 7nai/ have to take precedence of the civil authority, 
 which, nevertheless, is not deprived of its ordinary attributes, but, 
 in order to exercise them, must, of necessity, enter into concert 
 ivith the military commander. 3. The state of siege. When it 
 exists, all the local authority passes to the military commander, 
 who exercises it in his own person, or delegates it, if he please, 
 to the civil magistrates, to be exercised by them under his orders. 
 The civil law is suspended for the time being, or, at least, made 
 subordinate, and its place is taken by martial law, under the 
 supreme, if not direct administration of the military power. 
 "27(6 state of siege may exist in a city, or in a district of country, 
 either by reason of the same being actually besieged or invested by 
 a hostile force, or by reason of domestic insurrection" 
 
 Of these different stages, Mr. Gushing concludes, the state of 
 siege is equivalent to the proclamation of martial law in England 
 and the United States. 
 
 I remark upon this, that these distinctions, after all, between 
 a state of war and a state of siege, are not very valuable. Mar- 
 tial law is a thing of necessity, and is limited by the necessity, 
 so that the less urgent the necessity, the less extensive the power. 
 It places in the hands of the General a discretion, as discretion 
 is placed sometimes in the hand.s of judges and chancellors. 
 It is said that martial law is no law ; and it is said that eijuity 
 is the length of the chancellor's foot. But the chancellor, like 
 the General, is required to exercise a "sound discretion," a 
 " reasonable discretion," a " wise discretion, in view of all the 
 circumstances." 
 
 The New American Cyclopedia says : 
 
 •' Marfi.d law is often confounded witli military law; but these 
 terms arc by no means convertible." Speaking of martial law, it 
 says: "It proceeds directly from tlic military power whieli has now 
 become supreme. Yet. remotely aud indirectly, martial law expresses 
 the will ol' the people."' 
 
"WRIT OF UABEAS CORPUS, 139 
 
 *' Martial law has often been confounded with military law, hut the 
 two are very dift'erent. Military law, with us, consists of the ' Rules 
 and Articles of War,' and other statutory provisions for the jrovcrn- 
 ment of military persons, to which may be added the unwritten or 
 common law of the ' usage and custom of military service.' It exists 
 equally in peace and in war, and is as fixed and definite in its pro- 
 visions as the admiralty, ecclesiastical, or any other branch of law, 
 and is equally, with them, a part of the general law of the land. 
 But, in the words of Chancellor Kent, 'martial law is quite a distinct 
 thing.' It exists only in the time of war, and originates in military 
 necessity. It derives no authority from the civil law (using the term 
 in its more general sense), nor assistance from the civil tribunals, for 
 it overrules, suspends, and replaces both. It is, from its very nature, 
 an arbitrary power, and ' extends to all the inhabitants (whether civil 
 or military) of the district where it is in force.' It has been used 
 in all countries, and by all governments, and it is as necessary to the 
 sovereignty of a state as the power to declare and make war. The 
 right to declare, apply, and enforce martial law, is one of the sover- 
 eign powers, and resides in the governing authority of the state, and 
 it depends upon the constitution of the state whether restrictions and 
 rules are to be adopted for its application, or whether it is to be ex- 
 ercised according to the exigencies which call it into existence. But 
 even when left unrestricted by constitutional or statutory law, like the 
 power of a civil court to punish contempts, it must be exercised with 
 due moderation and justice ; and, as ' paramount necessity ' alone can 
 call it into existence, so must its exercise be limited to such times 
 and, places as this necessity may require ; and, moreover, it must be 
 governed by the rules of general public law, as applied to a state of 
 war. It, therefore, can not be despotically or arbitrarily exercised, 
 any more than any other belligerent right can be so exercised." 
 (Cushing, Opinions of U. S. Att'ys Gen'l, vol. 8, pp. 3G5, et. scq. ; 
 "NVolfius, Jus Gentium, see. 863 ; Grotius, De Jur. Bel. ac Pac, lib. 2, 
 cap. 8 ; Kluber, Droit des Gens, sec. 255 ; O'Brien, American Mili- 
 tary Law, p. 28.) (International Law and Laws of War. Ilal- 
 leck, 373.) 
 
 " Martial Jaw, then, is that military rule and authority which exists 
 in time of war, and is conferred by the laws of war, in relation to 
 persons and things, under and within the scope of active military 
 operations in carrving on the war, and which extinguishes or suspends 
 civil rights, and the remedies founded upon them, for the time being, 
 
140 APPLICATION FOR 
 
 SO far as it may appear to be necessary in order to the full accom- 
 plishment of the purpose of the war — the party who exercises it 
 beino; liable in an action for any abuse of the authority thus con- 
 ferred. It is the application of military government — the govern- 
 ment of force — to persons and property within the scope of it, 
 according to the laws and usages of war, to the exclusion of the 
 muniripal government, in all respects where the latter would impair 
 the efficiency of military law or military action." (Benet's 3Iilitary 
 Law and Courts-martial, 14.) 
 
 " We remark, in conclusion, that the right to declare, apply, and 
 exercise martial law is one of the rights of sovereignty, and is as 
 essential to the existence of a state as is the right to declare or carry 
 on war. It is one of the incidents of war ; and, like the power to 
 take human life in battle, results directly and immediately from the 
 fact that war legally exists. It is a power inherent in every gov- 
 ernment, and must be regarded and recognized by all other govern- 
 ments ; but the question of the authority of any particular function- 
 ary to exercise this power, is a matter to be determined by local and 
 not by international law. Like a declaration of a siege or blockade, 
 the power of the officer who makes it is to be presumed until dis- 
 avowed, and neutrals who attempt to act in derogation of that 
 authority, do so at their peril." (International Law and Laws of 
 AVar. Ilalleck, 380.) 
 
 " The English common law authorities and commentators generally 
 confound martial with inilltary law, and, consequently, throw very 
 little light upon the subject, considered as a domestic fact; and in 
 parliamentary debates, it has usually been discussed as a fact, rather 
 than as forming any part of their system of jurisprudence. Never- 
 theless, there are numerous instances in which martial law has been 
 declared and enforced, in time of rebellion or insurrection, not only 
 in India and British colonial possessions, but also in England and 
 Ireland. It seems that no act of Parliament is re([uircd to precede 
 BU'-h declaration, although it is usually Ibllowed by an ftct of indem- 
 nify, when the disturbances which called it forth are at an end, in 
 order to give constitutional existence to the fact of martial law.'' 
 (/J., Jh. 374.) 
 
 I will now ask attention to two cases discussed in tlic Su- 
 preme Court of the United States, wliich <fivc the sanction of 
 that Court to the- doctrine I am endeavoring' to sustain. 
 
-?. 
 
 WRIT OF HABEAS CORPUS. 141 
 
 The Constitution provides that private property shall not be 
 taken for public use without due compensation. Yet a General, 
 going to war, could not post his sentinels without committing 
 wliat would be, in peace, a trespass. Every mile of his march, 
 Avith ordinary military precautions, every encampment, would 
 be a violation of law. In Mitchell v. Harmony, 13 How. 115, 
 the plaintiff below had sued an officer of the army of the United 
 States for taking his property during the Avar Avith ^lexico. It 
 Avas taken on error to the Supreme Court of the United States, 
 on exceptions to the charge of the Circuit Judge to the jury. 
 Chief-Justice Taney said, p. 133: 
 
 " Upon these two grounds of defense the Circuit Court instructed 
 the jury that the defendant might lawfully take possession of the 
 goods of the plaintiflf to prevent them from falling into the hands of 
 the public enemy ; but in order to justify the seizure, the danger 
 must be immediate and impending, and not remote or contingent. 
 And that he might also take them for public uses and impress tliem 
 into the public service, in case of an innnediate and pressing danger 
 or urgent necessity existing at the time, but not otherwise." 
 
 The charge, as thus stated, Avas sustained. Again, on page 
 134, the Chief-Justice said: 
 
 "There are, without doubt, occasions in wliich private property may 
 lawfully be taken possession of or destroyed, to prevent it iVoni fall- 
 ing into the hands of the public enemy; and also Avhcre a military 
 oflScer, charged Avith a particular duty, may impress priA'ate property 
 into the public service, or take it i'or public use. Uiu^ucstionably, 
 in such cases, the government is bound to make full compensation 
 to the owner; hut the ojjiccr is not a tratjmsser." . . . "It is the 
 emergency that gives the right, and the emergency must be shown to 
 exist before the taking can be justified. In deciding upon this ncccs- 
 siti/, however, the state of the facts, as they appeared to the officer, at 
 the time he acted, must govern the decision; for he must necessarily 
 act upon the information of others, as well as his own observation." 
 
 jNIr. Justice Daniel delivered a dissenting opinion on other 
 points. But on this point he said, p. 139 : 
 
142 ArPLlCATIOX FOR 
 
 " Tlic principle itself, if properly applied, of the right to take 
 property to prevent it froui falling into the hands of the enemy, is 
 undisputed." 
 
 And again, same page : 
 
 " I have no doubt of the right of a military officer, in a case of 
 extreme necessity, for the safety of the government or army, to take 
 private property for the public service." 
 
 Again, p. 140 : 
 
 " The safety of the country is paramount, and the rights of the in- 
 dividual must yield in case of extreme necessity." 
 
 Observe that this is not placed on the ground that, in ex- 
 treme necessity, the Constitution is suspended, and tlie laws 
 properly broken ; but it is held to be a lawful act. They do 
 not look upon it as trespass, excusable from great urgency, 
 but they declare it not to be a trespass. The officer is clothed 
 with a lawful right to do it. But this property right is guarded 
 by the same sanctions in the Constitution with the right of 
 personal liberty. Inasmuch as a person may give the enemy 
 more help, or expose our own army to greater dangers than 
 property could, the reason is more cogent when applied to per- 
 sons. 
 
 During the celebrated Dorr rebellion, the Legislature of Rhode 
 Island passed an act declaring the State under martial law. One 
 Martin Luther bcin;^ charo-ed with aiding and abetting the rebel- 
 lion, his house was broken open and entered, and he was arrested, 
 or, in the language of the petition in this case, he was " seized 
 by overpowering numbers." He brought an action against the 
 parties who made the arrest, in trespass quarc clansum frc(/i(. 
 They justified under the statute declaring martial law. It ap- 
 pears that tlu-re was not, in that case, more than in this, ''any 
 warrant issued upon probable cause, supported by oatli or aflirma- 
 tion." Li that action martial law, as a topic, came under dis- 
 cussion in the Supreme Court of the United States. (Lutiier v, 
 Borden el al., 7 IL 1.) Cliiii- Justice Taney delivered the opinion 
 
Avf; 
 
 WRIT OF HABEAS CORPUS. 143 
 
 of the Court, from ^vhich I sliall presently read. But before 
 doing so, I propose to read from the dissenting opinion of Mr. 
 Justice Woodburj'-, and to invite the attention of learned counsel 
 on the other side to his descriptions of martial law, and the 
 distinction he makes between what is called military law and 
 martial law. It will appear that Mr. Justice Woodbury enter- 
 tained an antipathy to martial law, at least, as vehement as that 
 of counsel on the other side. The kind of martial law then 
 under discussion, and which was sanctioned by the Court, well 
 appears in his opinion. I shall read some passages showing 
 that, with all his antipathy for military power, he did admit the 
 propriety of an occasional exercise of military authority, pre- 
 cisely such as I say is authorized by martial law, and under 
 precisely such circumstances. The difi'erence between his posi- 
 tion and the one Avhich I am endeavoring to maintain, is this : 
 He considers the exercise of the power in question to be merit- 
 orious, and deserving the gratitude of the country, but a breach 
 of the law. I am endeavoring to maintain that it is in accord- 
 ance with law. His Honor quotes the language of the Rhode 
 Island statute, declaring martial law to be in force over the 
 entire State, and on page 59 says : 
 
 "Now the words martial law, as here used, can not be construed 
 in any other than their legal sense, lona; known and recognized in 
 legal precedents as well as political history. (See it in Ilallara's 
 Const. Ilist. cb. — , p. 258. 1 MacArthur on Courts-martial, 33.) 
 The legislature evidently meant to be understood in that sense by 
 using words of such well-settled construction, without any limit or 
 qualification, and covering the whole State with its influence, under 
 a supposed exigency and justification for such an unusual course. I 
 do not understand this to be directly combated in the opinion just 
 delivered by the Chief-Justice." 
 
 He then declares it to be manifest that it meant the ancient 
 martial law " often used before the Petition of Right, and some- 
 times since." He adverts to the fact that defendants do not 
 aver the existence of any civil precept, which they were aiding 
 civil officers to execute, but set up merely military orders under 
 
144 APPLICATION FOR 
 
 martial law. The dissenting opinion then argues that this did 
 not mean merely a suspension of Habeas Corpus, nor the mili- 
 tary code used in the armies of the United States and England : 
 
 '"Fur." s;iid bis Ilduor, " notliing is better settled than tliat mili- 
 tary law njiplios only to the military, hut martial law is made licrc to 
 (ij'pl^ to all." 
 
 Again, page 61 : 
 
 " So it is a settled principle, even in England, that under the 
 British Constitution the military law does, iu no respect, either super- 
 sede or interfere with the civil law of the realm ; and that the former 
 is, in general, subordinate to the latter, (Tytler on Military Law, 36, 
 51), uhile martial law overrides them all." 
 
 On page 02 his Honor gives us a lively description of martial 
 law, such as was declared by the statute in Rhode Island, and 
 such as "described in judicial as well as political history." The 
 rhetoric of learned counsel on the other side has often excited 
 my admiration ; never more than in his opening argument, when 
 he (k'nounccd martial law. But here is a passage from Judge 
 Woodbury, written, probably, with more care, and, perhaps, with 
 greater experience, which I hope to be pardoned for saying, is 
 rather superior to any thing we had the pleasure of listening to 
 tliis morning. It lacked only the fine voice and elocution of the 
 advocate of Mr. Vallandigham to make it even more elTectivc 
 than any thing he uttered : 
 
 "It exposed," says Mr. Justice Woodbury, " ibc whole population, 
 not only to be seized without warrant or oath, and their houses broken 
 open and rifled, and this where the municipal law and its officers and 
 courts remained undisturbed and able to punish all offenses, but to 
 send prisoners, thus summarily arrested in a civil strife, to all the 
 liarsh jtains and ]»cnaltics of courts-martial, or extraordinary commis- 
 pion, and for all kinds of supposed offenses. By it every citizen, 
 instead of reposing under the shield of known and fixed laws as to 
 liberty, property, and life, exists with a rope round his neck, subject 
 to be hung up by a military despot at the next lamp-post, under the 
 sentence of some drum-head court-martial." 
 
"WRIT OF HABEAS CORPUS. 145 
 
 After rending these animated and highly-wrought judicial 
 statements of impressions of a military court, one feels an 
 inclination, from motives of literary curiosity, to read some 
 description, by an imaginative military man, of a Court of 
 Chancery. The effect of subordinate and accidental circum- 
 stances on the imagination is notable. His Honor had been 
 obviously affected by thoughts of a drum -head as one of the 
 articles sometimes made use of at a military trial. They do 
 not use drum-heads in the Supreme Court of the United States, 
 having conveniences for writing of a more fixed and satisfactory 
 nature. One would wish to see an equally vivid account, by 
 some General, how his imagination was affected by sight of his 
 Honor's long black gown, without hoops or tournure. The drum- 
 head excited in his Honor's mind thoughts of a whole popula- 
 tion, and especially peaceful citizens, each with a rope round 
 his neck, waiting to be hung — hung to a lamp-post, and not 
 only a lamp-post, but the nearest lamp-post. It is to be pre- 
 sumed that the thoughts suggested to a General by his Honor's wig 
 and <rown, micrht have been more maternal and far less suffocatinor. 
 But it may be reckoned as certain that a military commander would 
 have felt some shock or revulsion at hearing from that august 
 tribunal, issuing solemnly forth from the blackness of an aged 
 and collapsed gown, a judicial representation of martial law: 
 not invoked as a shelter from imminent peril to the State, and 
 used because nothing less summary could be availing, nor used 
 in the interest of civil order, but as inexcusably obtruded upon 
 a people enjoying the beatitudes of undisturbed peace, and who 
 but for it would be " reposing under the shield of krtown and 
 fixed laws as to liberty, property, and life." Such being the 
 product of judicial reason in the highest civil tribunal, a Gen- 
 eral might turn back to his drum-head without a very deep 
 conviction of its inferiority. 
 
 His Honor says, p. G4 : 
 
 " It appears, also, that nobody has dared to exercise it, in war or 
 peace, on the community at large, in Enirland, for the last century 
 and a half, unless specially enacted by Parliament in some great exi- 
 
 10 
 
14(3 APPLICATION FOR 
 
 gency, and under various restrictions, and then under the theory not 
 that it is consistent with bills of rights and constitutions, but that 
 Parliament is omnipotent, and, for sufficient cause, may override and 
 trample on them all temporarily." 
 
 " After the civil authorities have become prostrated in particular 
 places, and the din of arms has reached the most advanced stages of 
 intestine commotions, a Parliament, which alone furnishes the means 
 of war — a Parliament unlimited in its powers — has, in extremis, on 
 two or three occasions, ventured on martial law beyond the military," 
 etc. 
 
 The question now under debate is, not who may declare mar- 
 tial law, but whether, in any emergency, it may be declared. 
 Nevertheless, his Honor is under a mistake as to the fact. (See 
 Hansard's Pari. His. 1801, vol. 35, pp. 1013, 1018, 1024.) In 
 a debate in the House of Commons, in 1801, Lord Castlereagh 
 said : 
 
 " I perfectly understand that the prerogative of the Crown author- 
 izes those acting under its authority to exercise martial law. I 
 maintain that it is a constitutional mode for the executive govern- 
 ment to excrcij^e martial law in the first instance, and to come to 
 Parliament for indemnity afterward, and is preferable to applying to 
 
 Parliament first TItc rchclUon in Ireland broke ou( in May, 
 
 1798; the cxeeutlvc government puhliahtd a proelamation of martial 
 law xclierever the rebellion existed, widiout any express law for that 
 piirpn^r. They did it on the principle that they were authorized by 
 the king's prerogative, provided they did not transgress the necessity 
 of the case, and sure I am that nothing could have induced them to 
 have departed from the strict constitutional system, but that they 
 felt they must deny to a great part of the country the advantages of 
 the civil law, unless it were incorporated with the martial law. The 
 two systems, existing at the same time, led to such a conflict of jiu'is- 
 diction it was impossible to give eflfcct to others." 
 
 It was denied by others that the proclamation of martial law 
 could rightfully be made by virtue of the king's prerogative. 
 The fact, however, is beyond question : il tvas made, and not 
 hy ParVunnent. 
 
M 
 
 "WRIT OF HABEAS CORPUS. 147 
 
 His Honor, Judge Woodbury, p. 69, says : 
 
 " All our social usacres and political education, as well as our con- 
 stitutional checks, are the other way. It would be alarming enouj^h 
 here to sanction an unlimited power, exercised by lej::islators, or the 
 executive, or courts, when all our governments are themselves gov- 
 ernments of limitations and checks, and of fixed and known laws ; 
 and the people a race above all others jealous of eucroachmeuts by 
 those in power." 
 
 He nowhere drops the fallacy of regarding martial law as a 
 substitute for civil law in time of peace and safety. He keeps 
 up the illusion of constitutional checks and limitations standing 
 unassailed, free from threatened overthrow, and needing no mili- 
 tary support. On this halcyon scene he imagines to be thrust 
 the sudden, unnecessary march of armies ; he is startled at the 
 vision of bayonets and the sound of military command. With 
 equo.lly cogent logic might he demonstrate the inappropriateness 
 of snow in harvest. Through all this elaboration, there breaks 
 upon him, at last, a dim consciousness of not having met the 
 question. He rids himself of it by one dogmatic stroke, and 
 hurries forward to lose himself again in a thicket of evasions. 
 During this moment of consciousness, he says, p. 69 : 
 
 "And it is far better that those persons should be without the 
 protection of the ordinary laws of the land, who disregard them in 
 an emergency, and should look to a grateful country for indemnity 
 and pardon, than to allow, beforehand, the whole frame of jurispru- 
 dence to be overturned, and every thing placed at the mercy of the 
 bayonet." 
 
 Here, at last, is all the argument against martial law that is 
 produced, either in this dissenting opinion, or elsewhere. Mid- 
 fum in parvo. The occasional necessity for extraordinary reme- 
 dies is admitted. That it is a rule of action among men to 
 resort to these remedies, when needed, is not denied. That 
 those who, in cases of peril, perform these services are entitled 
 to the gratitude of their country, and may properly look to it 
 for indemnity, is not only conceded, but is urged as part of 
 
148 APPLICATION FOR 
 
 the argument. If we may be grateful to those wlio, in an emer- 
 gency, overturn the whole frame of jurisprudence, might we not 
 be still more grateful to those who made a frame of jurispru- 
 dence which docs not require, in an emergency, to be overturned? 
 It is conceded that, in times of peril, the public safety is the 
 supreme law. But it is argued that because this law might be 
 perverted and abused, it should itself be considered a perver- 
 sion and abuse ; one which entitles the performer to the grati- 
 tude of his country. It is customary to erect monuments to 
 those who are entitled to public gratitude. On the theory I am 
 combating, the inscription should be, " Sao'ed to the memory of 
 a patriot, who earned the gratitude of his country by perverting 
 and abusing its laivs, and by overturning the whole frame of its 
 jurisprudence.'' The argument presupposes that persons in- 
 trusted with government functions are so bad that, if allowed 
 by law to do the act when necessary, they would be likely to do 
 it when not necessary. To avoid this danger, they are to be 
 considered so good as to be relied upon to overturn the govern- 
 ment, if need be, in order to save it. There is so much danger 
 that public men will violate the law under false pretexts, they 
 are to be encouraged to violate it without any pretext. And 
 such violation is to be considered a legitimate means of becom- 
 ing public benefactors. Is it possible for absurdity to go 
 further? 
 
 In the next paragraph, we find his Honor no more face to 
 face with the question, but retired l)ehind a screen : 
 
 " No triliunal or department in our system of governments ever 
 can be lawfully authorized to dispense with the laws, like some of 
 the tyrannical Stuarts, or to repeal, or abolish, or suspend the whole 
 body of them ; or, in otlior words, appoint an unrestrained military 
 dictator at the head of armed men." 
 
 Again and again, the question is not whether the laws may 
 be dispensed with. It is whether the laws authorize, in certain 
 situations, the performance of acts which, if performed, even 
 against the law, would ])e titles to public gratitu<le. Why should 
 we be always answered only by an absurd jingle of words — 
 
-9 r 
 
 "WRIT OF HABEAS CORPUS. 149 
 
 about being " laivfully aufhorized to dispense iviih the laws, like 
 some of the ti/mnnical Stuarts " Is it claimed that the tyranni- 
 cal Stuarts were lawfully authorized to dispense with the laws ? 
 Or, if they were, did his Honor imagine tliat the fair administra- 
 tion and enforcement of a law is the same sort of thing, the same 
 kind of tyranny, as dispensing with it? On his own theory, 
 the Stuarts might have been entitled to public gratitude, if they 
 had happened to overturn the law at the right time. Tiie 
 question is, whether, in great emergencies, the commander of the 
 military force may be considered as lawfully intrusted with a 
 discretion, limited and restrained strictly within the necessity of 
 the occasion ? In reply to this question, his Honor denies that 
 there ought to be " an unrestrained military dictator at the 
 head of armed men." He denies that authority exists to repeal, 
 abolish, or suspend, the whole body of the laws. But if no tri- 
 bunal or department in our government is authorized to over- 
 throw or suspend the laws, are they authorized to allow others 
 to overturn them ? The question is, what may be done to save 
 the laws from overthrow? The army and navy and militia are 
 at the President's command, and his oath binds him " to the 
 best of my ability." 
 
 On pages 75 and 82, his Honor refers to the different steps 
 toward war powers, which precede the shock of war and the laws 
 of war. And, on page 83, he says : 
 
 " The necessities of foreign war, it is conceded, sometimes impart 
 great powers as to both things and persons. But they are modified 
 by those necessities, and subjected to numerous regulations of national 
 law and justice and humanity So mat/ it be in some ex- 
 treme stages of civil tear. Among these, my impression is that a state 
 of war, whether foreign or domestic, may exist, in the great perils of 
 u'hich it is competent, UNDER its rights, and on rRiNclPLES OP 
 NATIONAL LAW, for a commanding officer of troops, under the con- 
 trolling government, to extend certain rights of war, not only over his 
 camp, but its environs and the near field of his military operations. 
 But no further nor wider. On this rested the justification of one 
 of the great commanders of this country, and of the age, in a trans- 
 action so well known at New Orleans." . ..." If matters in 
 
150 APPLICATION FOR 
 
 this case had reaehed such a crisis, and had been so recognized by 
 the government, or if such a state of things could and did exist 
 as to warrant such a measure, independent of that government, and 
 it was properly pleaded, the dtfcndunts might, perhaps, he justified 
 within those limits, and under such orders, in making search for an 
 offender, or an opposing combatant, and, under some circumstances, in 
 breaking into houses for his arrest.'^ 
 
 I ^vill restore the passage omitted at the place of the aster- 
 isks above: "But in civil strife, they (the rights of war) are 
 not to extend beyond the place -where insurrection exists. Nor 
 to portions of the State remote from the scene of military opera- 
 tions. Nor after the resistance is over. Nor to persons not 
 connected with it. Nor even Avithin the same, can they extend 
 to the person or property of citizens against whom no probable 
 cause exists Avhich may justify it. Nor to the property of any 
 person without necessity or civil precept." 
 
 His Honor, at last, after all his reluctance, comes to a full 
 admission of the legality of such arrests. The only condition 
 is, time, place, circumstance. His Honor, however, substitutes 
 a phrase. I have called it martial law. He calls it the rights 
 of war. It is of no importance to my argument which phrase is 
 used. The thing which he has been denouncing as an overthrow 
 of all law, he at last admits to be lawful. He also places these 
 personal arrests in the same category with military seizures of 
 property, which that Court holds to be lawful. 
 
 I may now turn to the opinion of the Court as delivered bv 
 Chief-Justice Taney, p. 45 : 
 
 "The remaining question," says the Chief-Justice, "is whether the 
 defendants, acting under military orders, issued under the authority of 
 tlie government, vrcrc justified in breaking and entering the plain- 
 tiff's house. In relation to the act of the Legislature declaring mar- 
 tial law, it is not necessary, in the case before us, to in([uire to what 
 extent, or under wliat circumstances, that power may be exercised by 
 a State. Cnipu'sti(jnably a military government, established as the 
 jpcniKinriit govcnmu'iit ol' a State, would not be a republican govern- 
 ment, and it would be the duty of Congress to overthrow it. But 
 tho law of IilKjde Island evidently contemulatcd uo such government. 
 
xy 
 
 WRIT OP HABEAS CORPUS. 151 
 
 It was intended merely for the crisis, and to meet the peril in which 
 the existing government was placed by the armed resistance to its 
 authority. It was so understood and construed by the State author- 
 ities, and, unquestionably, a State may use its military power to put 
 down an armed insurrection too strong to be controlled by the civil 
 authority. The power is essential to the existence of every government, 
 essential to the preservation of order and free instifntions, and is a$ 
 necessary to the States of this Union as to any other guvcrnment. The 
 State itself must determine what degree of force the crisis demands. 
 And if the government of Rhode Island deemed the armed opposition 
 so formidable, and so ramified throughout the State, as to require the 
 use of its military force, and the declaration of martial law, we see no 
 ground upon which this Court can question its authority. It xoas a 
 state of war ; and the established government resorted to the rights and 
 usages of tear to maintain itself, and to overcome the unlawful opposi- 
 tion. And, in that state of things, the officers* engaged in its military 
 Service might lawfully arrest any one who, from the information 
 before them, they had reasonable grounds to believe was engaged in 
 the insurrection, and might order a house to be forcibly entered and 
 searched, when there were reasonable grounds for supposing he might 
 be there concealed. Without power to do this, martial law and the 
 military array of the government icould he mere parade, and rather 
 encotirage attack than repel it. No more force, however, can be used 
 than is necessary to accomplish the object. And if the power is used 
 for purposes of oppression, or any injury willfully done to person or 
 property, the party by whonj, or by whose order, it is committed, 
 would undoubtedly be answerable." 
 
 ""We forbear to remark upon the cases referred to in the argument, 
 in relation to the commissions anciently issued by the kings of England 
 to commissioners to proceed against certain descriptions of persons, in 
 certain places, by the law martial. These commissions were issued by 
 the king at his pleasure, without the concurrence or authority of Par- 
 liament, and were often abused for the most despotic and oppressive 
 purposes. They were used before the regal power of England was well 
 defined, and were finally abolished and prohibited by the Petition of 
 llight, in the reign of Charles the First. But they bear no analogy in 
 any respect to the declaration of martial law by the legislative author- 
 ity of the State, made for the purposes of self-defense, when assailed by 
 an armed force; and the cases and commentaries concerning these 
 commissions can not, therefore, influence the construction of the Rhode 
 
152 APPLICATION FOR 
 
 Island law, nor furnish any tost of the lawfulness of the authority 
 exercised by the government." 
 
 This decision docs not determine in what l)rancli of tlie 
 government resides authority to declare martial law. But it 
 recognizes martial law as a legitimate means of preserving the 
 government in emergencies calling for it. It shows that the 
 ground taken by counsel on the other side, that no such authority 
 is lodged in any branch of the government, is untenable. On 
 page 44, the Court replies to the same kind of argument we have 
 heard here, of the danger of intrusting so much power to the 
 President. 
 
 *' It is said that this power of the President is dangerous to liberty, 
 and may be abused. All power may be abused if placed in unworthy 
 hands. But it would be difficult, we think, to point out any other 
 hands in which this power would be more safe, and, at the same time, 
 equally efiectual. When citizens of the same State are in arms against 
 each other, and the constituted authorities unable to execute the laws, 
 the interposition must be prompt or it is of little value. The ordinary 
 course of proceedings in courts of justice would be utterly unfit for 
 the crisis. And the elevated office of the President, chosen as he is 
 by the people of the United States, and the high I'esponsibility he 
 could not fail to feel when acting in a case of so much moment, appear 
 to furnish as strong safeguards against willful abuse of power as hu- 
 man prudence and foresight could well provide. At all events, it is 
 conferred upon him by the Constitution and laws of the United 
 States, and must, therefore, be respected and enforced in its judicial 
 tribunals." (7 II. 4t.) 
 
 "Moreover, when u military force is called out to repel invasi<in or 
 suppress a rebellion, it is not placed under the direction of the judi- 
 ciary, but under that of the executive. Suppose the military force, 
 legally and constitutionally called into service for the purposes indi- 
 cated, should find it necessary, in the course of its military operations, 
 to occupy a field or garden, or destroy trees, or houses, belonging to 
 some private person, can a court, by injunction, restrain them from 
 committing such waste? It can do so in time of peace, and if its 
 powers arc to contimu; in time of war, the judiciary, and not the exec- 
 utive, will command the army and navy. The taking or destroying 
 
WRIT OF HABEAS CORPUS. 153 
 
 of private property, in such cases, is a military act, an act of war, and 
 must be governed by the laws of war ; it is not prouded for by the 
 laws of peace. In the same way, a person taken and held by the 
 military forces, whether before, or in, or after a battle, or without 
 any battle at all, is virtually a prisoner of war. No matter what big 
 alleged offense, whether he is a rebel, a traitor, a spy, or an enemy 
 in arms, he is to be held and punished according to the lavjs of war ^ 
 for these have been substituted for the laws of peace. And for a 
 person so taken and held by the military authority, a writ of Habeas 
 Corpus can have no effect, because, in the words of the United States 
 Supreme Court, 'the ordinary course of justice would be utterly unfit 
 for such a crisis.'" (International Law and Laws of War. Ilalleck, 
 378.) 
 
 The same writer states circumstances in tlie history of this 
 country, which your Honor will find it easy to verify. From 
 this statement it appears that the practice, now complained of 
 as strange and unprecedented, was commenced under the admin- 
 istration of Washington. Jefferson and Jackson are also impli- 
 cated. When Vallandigham shoots his poisoned arrows at 
 President Lincoln, if there should prove to be strength enough 
 in the bow, the same aim will pierce a succession of illustrious 
 defenders of liberty. Here is the statement: 
 
 "During the administration of President Washington, in the Penn- 
 sylvania 'Whisky Insurrection' of 1794 and 1795, the military 
 authorities engaged in suppressing it disregarded the writs which 
 W'ere issued by the courts for the release of the prisoners who had 
 been captured as insurgents. General Wilkinson, under the authority 
 of President Jefferson, during the Burr Conspiracy of 1806, suspended 
 the privilege of this writ, as against the Superior Court of New 
 Orleans. General Jackson assumed the right to refuse obedience to 
 the writ of Habeas Corpus, first in New Orleans, in 1814, as against 
 the authority of Judge Ilall, when the British army -was approaching 
 that city ; and afterward, in Florida, as against the authority of 
 Judge Fromentin." 
 
 May it please your Honor! I have spoken some words of 
 praise of the character and services of General Burnside. I 
 
154 APPLICATION FOR 
 
 can now be silent. The patriot who, in these times, can get 
 himself abused for following in the footsteps of Washington, 
 Jefferson, and Jackson, has triumphed over all need of my poor 
 commendation. Tlic wrath of his country's enemies has been 
 made to praise him. 
 
 The authorities relied upon to show that the laws of war, or 
 martial law, are not any more allowed in Great Britain, I have 
 shown to be in error. The statements, though made by parties 
 whom we might expect to be informed, and which have proba- 
 bly misled counsel on the other side, are shown by Mr. Gushing, 
 Attorney-General under the lato President Pierce, to have 
 resulted from misapprehension and confusion of ideas. But 
 this showing depends not on the authority alone of his name, 
 strong as it may be. The errors referred to are so demonstra- 
 ble to reason, and so utterly at variance with history, it is quite 
 unnecessary to go into a further exposition concerning them. 
 In the dissenting opinion of Judge Woodbury, which I have 
 freely adverted to, he was misled into a similar statement; but 
 he let into it a sufficient number of exceptions to correspond 
 with all the occasions there have been in Great Britain for mar- 
 tial law within the last hundred years, lie insisted, however, 
 that they had no constitution, and such acts were only done by 
 Parliament in virtue of its unlimited power. I must again say, 
 that the question is not, who may do it, but can it be done? For 
 the purpose of my argument it is sullicicnt if done by Parliament, 
 but the fact is otherwise. The quotation from Hansard's Debates 
 shows that once, at least, it has been done by the executive. I 
 have no doubt the same is true in other instances. The import- 
 ant matter is, however, it has been done, both in Great Britain 
 and this country, every time there has been occasion for it. It 
 is a rule of action in both countries. 
 
 The misconception of terms and confusion of ideas among 
 common lawyers, on this topic, are not confined to England. 
 A much clearer perception is shown Ity American writers on the 
 main ([ucstion involved; but even Mr. Gushing and Mr. Ilalleck 
 fall into error in some particulars. The relations of suspension 
 
WRIT OF HABEAS CORPUS. 155 
 
 of Habeas Corpus to martial law arc less well defined. They 
 explain these to us in a jumble of words, which need more ex- 
 planation than the facts sought to be explained. It has been 
 the good fortune of Great Britain and the United States to 
 experience so few occasions for the laws of war within their own 
 borders, and those occasions have been of duration so brief, 
 that a prompt and unflinching recognition and use of martial 
 law, when the occasions have happened, is all that I need show. 
 Peace turns attention to thoughts of peace. The judges, then-, 
 take tlieir turn ; and danger being over, they sometimes bite 
 their thumbs at the Generals in a very affecting manner. We 
 are told that acts of indemnity are passed in order to cover the 
 illegality of the laws of war, as if a law could be illegal ! 
 
 When lawyers and judges fall to using rigmarole, it is not 
 common for politicians and pamphleteers to allow themselves to 
 be outdone. In the passage quoted from Hansard, Lord Castle- 
 reagh is made to say : 
 
 " I maintain that it is a constltufional mode for the executive gov- 
 ernment to exercise martial law in the first instance, and to come to 
 Parliament for indemnity afterward. . . . They did it on the prin- 
 ciple thiit they icr.rc authorized hy the king's prerogative, provided they 
 did not transgress the necessity of the case." 
 
 This call for indemnity is often said to signify that the act 
 was unlawful. What indemnity could be needed for a lawful 
 act? So, then, it would appear to be a constitutional mode to 
 do the unconstitutional thing, intending presently to apologize 
 for it. Mr. Grey (afterward Earl Grey) was not impressed with 
 the clearness of this explanation. He says : 
 
 '' It was better that the executive government should resort to 
 what had been called (he thought not legally) its prerogative of 
 proclamiug martial law. That was no prerogative of the Crown, but, 
 rather, an act of power sanctioned by ncccs^sity, martial law being a 
 suspension of the king's peace." 
 
 Here, then, is a blaze of light. It was better to resort to 
 that which did not exist, to-wit: the prerogative. It was an act 
 
156 APPLICATION FOR 
 
 of povrer " sanctioned " by necessity, " martial law being a sus- 
 pension of the king's peace." This luminous expounder had 
 arrived at the conclusion that in war peace must be considered 
 as suspended. It did not, however, occur to him that it is war 
 itself which suspends peace, and not the laws of war, which of 
 necessity exist when war exists. 
 
 Our own writers follow in the same train. Mr. Attorney- 
 General Gushing, in the opinion before quoted, says : 
 
 " We have in Great Britain several recent examples of acts to give 
 constitutional existence to the fact of martial law^ 
 
 Mr. Ilalleck says : 
 
 '■'■It seems that no act of Parliament is required to precede such 
 declaration, although it is iisually followed by an act of indemnity, 
 when the disturbances xohich called it forth are at an end, in order to 
 give constitutional existence to the fact of martial law^ 
 
 They are explaining the laws of England, and on this part of 
 the topic relax their vigilance, repeating merely the incongru- 
 ous failures which they find. Passing over the idea that Parlia- 
 ment can make a thing constitutional which is not — an absurd- 
 ity — they are not boggled at the declaration that an act already 
 gone by and ended, can be made io have been constitutional, 
 which was at the time not so. On the theory thus furnis]ie<l by 
 Englishmen, and incautiously followed by some of our best 
 writers, indemnity acts, if truly expressing their meaning, would 
 read as follows: " WhereaH, certain acts have been done which 
 are known to have been unconstitutional and illef/al, therefore they 
 were and are co7istitutional, legal acts.'' This is carrying the 
 power of Parliament to a pitch compared with which Omnipo- 
 tence is feeble. 
 
 If I may venture to suggest the explanation they were mani- 
 festly groping for, it is in the fact alluded to by Earl Grey : the 
 king's peace is suspended. This suspension of peace being 
 usually accompanied by more or fewer proclamatory documents, 
 and these documents being the only part taken in war by judges 
 
WRIT OF HABEAS CORPUS. 157 
 
 and legislators, tlicy have mistaken the documents for the war. 
 They have omitted to remember that a fixilure of documents 
 would not change the fact of war. The war, and not the docu- 
 ments, suspends peace. Of this the writers arc sufficiently aware 
 in other parts of their discussion. Mr. Attorney-General Gush- 
 ing says : 
 
 " When martial law is proclaimed under circumstances of assumed 
 necessity^ the proclamation must he regarded as the statement of an 
 existing fact, rather than the legal creation of that fact." 
 
 In this statement Mr. Halleck concurs. Indeed, notliing can 
 be more obvious. Yet most of the antipathy and all the argu- 
 ments I have met with, directed against martial law, are argu- 
 ments against enforcing it during peace. In other words, they 
 are arguments against inflicting the rigors of war under false 
 pretexts. A part of the confusion is occasioned by speaking of 
 martial law as if it were distinct and diff'erent from the laws of 
 war, or rights of war. No one doubts that, Avhen war exists, it 
 is a thing of such a paramount and supreme nature that its laws 
 must prevail. The existence of war is not a suspension of 
 Habeas Corpus ; but, for all arrests authorized by the laAvs of 
 war, the answer that war exists, and that the arrest was made in 
 accordance with its rules, is a lawful and sufficient answer to a 
 Habeas Corpus. General Burnside has expressed it very well : 
 " We are in a state of civil war, and an emergency is upon us 
 which requires the operations of some power that moves more 
 quickly than the civil. There never was a war carried on suc- 
 cessfully loifhouf the exercise of that powers 
 
 Indemnity acts are sufficiently accounted for without supposing 
 them to be necessary as a legal justification for acts of war. 
 They are commonly enacted in civil wars, in which the applica- 
 tion of the rigors of war is startling to people long accustomed 
 to peace and civil administration. A concurrence of all branches 
 of government in any public acknowledgment of its necessity, 
 either before or after the fact, can not fail to produce a valua- 
 ble eff'ect on the public mind. Such acts may, also, in England 
 answer a good legal purpose. They may close the courts to 
 
158 APPLICATION FOR 
 
 vicious ami exporimentul litigation, by -wliich persons engaged in 
 the public service in time of war, might, on the return of peace, 
 be ruined or compelled to flee their country. Counsel on the 
 other side, I umlerstood him to say, by instruction of his client, 
 has, at some Icnjith, called our attention to the number and 
 variety of civil actions, to -which, on his theory. General Burn- 
 side has exposed himself, as ■well as all who acted under his 
 orders. On his theory, no act of indemnity can shield our sol- 
 diers. The right he claims is a constitutional right, which legis- 
 lation can not affect. On his theory, every act of war by our 
 soldiers is a trespass, and no act of indemnity can reach them. 
 Hard as the fortunes of soldiers may be in war, on his theory, 
 peace Avill bring them no repose. Our poor country, defended 
 by their valor, enriched by their blood, however grateful it may 
 be, can only welcome them home to the embrace of bailiffs. 
 We may ring bells, kindle bonfires, and pour out our hearts in 
 thankfulness to God for returning peace, but the noble boys 
 who won it for us must skulk in hiding-places, to dream only 
 of writs and constables and the law's delays ; certain that their 
 danger in peace is in proportion to their valor in war, and that 
 he only can be hopeful who can prove himself to have been 
 useless. This is not an exaggeration, but a necessary, logical 
 result of the doctrine advanced here on behalf of Mr. Vallan- 
 digham. 
 
 The proposition is that the right to personal liberty, freedom 
 of speech, etc., arc absolute, inalienable rights, guaranteed in- 
 flexibly by the Constitution, and not lo be suspended in any 
 emergency, nor made to yield to any public necessity. I repeat 
 that the question argued by counsel on the other side is not a 
 question under what circumstances tliese rights may be abridged, 
 but he denies the legal possibility of sueli abiiilgiiieiit. Those 
 rights extend to all citizens — to persons subject to military duty 
 as well as the rest. Yet the same Constitution which guaran- 
 tees these inalienable rights, authorizes the making of war and 
 the calling out of the militia. Pressed by this fact, counsel do 
 not seek to deny that the liberty of the soldier is, for the time 
 of his service, abridged. This is too palpable for denial. IIo 
 
WRIT OF HABEAS CORPUS. 159 
 
 seeks, therefore, to get round it by reading from an English 
 decision, to the effect that tlie soklier gives up his liberty by 
 contract. This poor evasion docs not apply to persons who arc 
 drafted against their -will ; but it is itself a denial that these 
 rights are inalienable, for it speaks of alienating, by contract, 
 an inalienable right. 
 
 The conclusion is inevitable. These rights, so carefully 
 enumerated in the Constitution, and so often referred to by 
 learned counsel, arc liable to be abridged under particular cir- 
 cumstances. The Constitution contemplates and provides for 
 such abridgment. This abridgment is especially provided for in 
 time of war. And since no limits are fixed to the means to be used 
 in war, every thing may be done which the necessities of war re- 
 quire. The laws of war are, for the time, as much a part of the 
 Constitution as the laws of civil procedure are in time of peace. 
 
 My argument is founded on the idea that the laws of war 
 are a necessary incident of a state of war, and, therefore, 
 depend for existence only on the fact of war. It is quite unnec- 
 essary to refer to proclamations or advertisements of the fact. 
 Order No. 38 is a proclamation, if it were a question of proc- 
 lamations. Every branch of government, State and Federal, has 
 made numerous annunciations of this war. Counsel calls our 
 attention to certain proclamations of the President relating to 
 emancipation of slaves, which define, for that purpose, the insur- 
 rectionary districts ; and counsel insists that these must be hold 
 as limiting martial laAV to those districts. Those proclamations 
 do not include Missouri, Kentucky, Tennessee, Western Vir- 
 ginia, or portions of Eastern Virginia, or Norfolk or Portsmouth. 
 If the laAvs of war depend on these proclamations, they are ex- 
 cluded from the places where the war has been most active. 
 They did not purport to define the limits of war, but the limits 
 of emancipation. If my argument is sound, neither the presence 
 nor absence of proclamations can, materially, afi'cct the question. 
 It is a question of the existence of war. 
 
 It may be said that this argument, if correct, reduces us to a 
 state of dependence on military power. Far otherAvise. It is 
 not a state to be argued into, or argued out of. If, when 
 
160 APPLICATION FOR 
 
 threatened Ly Generals and armies who are traitors and ene- 
 mies, we are obliged to depend upon Generals and armies who 
 are patriots and friends, nothing can he gained by denying the 
 fact, or by keeping up a false pretext of being in some other 
 condition. The danger, whatever it may be, is not very much 
 diminished by going into hysterics ; nor is it greatly changed 
 in its character by the names applied. It is sometimes called 
 "710 ?a«t'" — ^^an abrogation of law'' — "a supcnsion of laiv,'' 
 because for a time the ordinary civil administration is suspended 
 or subordinated to a great public necessity. But the law pro- 
 vided for such occasions is in force. It is appealed to, to pro- 
 tect us when other laws fail. 
 
 The laAvs of war have their appropriate checks and limitations. 
 The General in command of an army, in the field of his opera- 
 tions, for purposes of war, is expected to act with promptness, 
 and sometimes with secrecy. He is not expected to write out 
 and deliver his opinions, or to wait for briefs. This may be his 
 misfortune ; it certainly is not his fault. Ilis action in this 
 sense may be called "arbitrary," and his administration "des- 
 potic." But, after all, he is limited and restrained. If he push 
 beyond the rights of war, the laws of war do not protect him. 
 In applying those laws, he is further restrained by a sense of 
 propriety and duty. He acts in peril of the disapprobation of 
 higher authority, who may displace, or, in some cases, impeach, 
 him ; in peril of the disapprobation of the Supreme Being and 
 of his countrymen ; in peril of that sure infamy which awaits 
 all who unnecessarily aggravate the evils of war. It is not easy 
 to conceive a situation appealing to higher sanctions than that 
 of a General conmianding in war. "yl^ all events," says General 
 Burnside, " / will have the consciousness before God of having 
 done nig dnlg to mg eoiDifrg.'^ 
 
 May it please your Honor! I have pursued this branch of 
 the argument at sonic length. H' tlie view of the Constitution 
 here presented be, as it appears to me, well grounded in reason, 
 and sustained by authority, the main proposition on wliich the 
 petitioner rests his application is overthrown, and, willi it, the 
 claim to a writ of Habeas Corpus. 
 
"WRIT OF HABEAS CORPUS. 161 
 
 I did not understand counsel to argue that, in the case of 
 Vallandijiham, there were circumstances to render this arrest 
 illegal or unnecessary, provided such arrests can in any case be 
 justified. I did distinctly understand him to disclaim the idea 
 that the Constitution permits a military arrest to be made, 
 under any circumstances, of a person not engaged in the mili- 
 tary or naval service of the United States, nor in the militia of 
 any State called into actual service ; and to rest his case on that 
 broad denial. The whole petition is framed on this idea, for 
 none of the charges are denied. 
 
 Upon first impression, your Honor may have inclined to the 
 belief that petitioner had assumed an unnecessary burden, and 
 might have more easily made a case by putting General Burn- 
 side to show the propriety of this arrest ; admitting the general 
 right to make such arrests as were indicated by the necessities 
 of the service, but denying any ground for this arrest. But 
 your Honor will find that no mistake has been made by learned 
 counsel on the other side, in this particular. The circumstances 
 shown justify the arrest, if any arrest of the kind can be justi- 
 fied. If General Burnside might have arrested him for making 
 the speech face to face with his soldiers, the distance from them 
 at which it was uttered can make little difference. lie might 
 make it in camp ; and unless he could be arrested, there would 
 be no way to prevent it. The right of publication, of sending 
 by mail and telegraph, are of the same grade with freedom of 
 speech. If utterance of the speech could not be checked, its 
 transmission by mail and telegraph could not be. And I so 
 understand the argument of the counsel of Vallandigham. It 
 appears to claim, and go the whole length of claiming that it can 
 do the army no harm to read such addresses ; nor, of course, to 
 hear them. It is necessary the argument should not stop short 
 of that in order to meet the question, and it does not. Yet 
 this is not the whole extent to which it must go to avail the 
 petitioner. It must go to the extent of showing that this Court 
 is authorized to determine that such addresses may be heard by 
 the army, the opinion of the commanding General to the con- 
 trary notwithstanding. It goes and must go the extent of traus- 
 11 
 
162 APPLICATION FOR 
 
 fening all responsibility for -what is called the morale and dis- 
 cipline of the army from its commanding General to this Court. 
 
 Is it not certain that if these addresses shall persuade nobody, 
 their authors will be disappointed ? Is it not certain that any 
 soldier persuaded to believe that his government is striving to 
 overthrow liberty, and for that purpose is waging a wicked and 
 cruel war, can no longer, in good conscience, remain in the serv- 
 ice ? The argument leads to one of two conclusions. We are 
 to be persuaded by the men who make the speeches, that the 
 speeches will not produce the effect they intend — a persuasion 
 in which their acts contradict their words — or we are to con- 
 sent to the demoralization of the army. The Constitution author- 
 izes and even requires the army to be formed, but at that stage 
 of the transaction interposes an imperative prohibition against 
 the usual means of making it effective. 
 
 It is said, however, that the charges against Yallandigham 
 are triable in the civil tribunals. So are a large proportion of 
 all the charges which can be brought against any one engaged 
 in an insurrection. No rebel soldier has been captured in this 
 war, no guerrilla, who was not triable in the civil tribunals. The 
 argument in this, as in other particulars, necessarily denies the 
 applicability of the laws of Avar to a state of war. 
 
 Learned counsel on the other side has cited to us and read 
 passages from decisions and text-books, on two points, the 
 relevancy of which to the question now before us I am not 
 able to perceive. One scries of these citations reminds us 
 of arrests which were not made in accordance wiih any laws, 
 cither of peace or war, which were declared illegal and punished. 
 I can, if he shall think them useful, furnish him many more of 
 the same kin<l. But I am under an impression that when an 
 arrest has been shown to be illegal, no further autliority will be 
 necessary to show that the person making it is liable to punish- 
 ment. He has road to us an account of the execution of Gov- 
 ernor W;ill. Afh'r pence had been restored, and after a pre- 
 tended, lull illci/id tr'ud Jnj cnurl-martial, he caused a j^unishment to 
 be inflirlrd trhirh renullcd In the death of the soldier punishrd ! lie 
 was himself punished for the act. What has that to do here ? 
 
WRIT OF HABEAS CORPUS. 1G3 
 
 He cites to us a case where a justice of the peace, not liahle to 
 military duty, had been fined by a militia courtMnartial, u'hich 
 had no jurisdiction over him, for omitting to do Avliat he was not 
 bound to do; and the whole proccedin<5 was declared illegal. 
 AVhat has that to do here ? He cites to us a case, growiu"; out 
 of the celebrated John Wilkes controversy, where arrests were 
 made, and houses and papers searched, under a pretended war- 
 rant, issued by a person having no right to issue a warrant. It 
 was a trespass, and the jury put on, as they ought, heavy dam- 
 ages. "What has that to do here ? 
 
 I need not follow these citations. None of them have any 
 other bearing that I am able to perceive, than to show that 
 illegal arrests are not to be justified. Who claims that they 
 are? None of these citations show, or tend to show, that the 
 arrest here is not in accordance with the laws of war. It comes 
 back to the original question. In time of war, do the rules of 
 war prevail ? If they do, arrests made in accordance with them 
 ar(? legal. If they do not, every rebel who has been captured 
 has his action of trespass and fiilse imprisonment against the 
 soldiers who captured him. If they do not, every soldier who 
 has killed his enemy in battle is liable to be prosecuted for it 
 as a crime. This is the only alternative. Need I pursue the 
 argument ? 
 
 Another class of authorities cited by counsel bears upon the 
 old and familiar doctrine of constructive treason. Its bearing 
 on the question before the Court I am not able to discover. But 
 since there may be some connecting link, not visible to the naked 
 eye, let me say that, on the strength of his own citations, I should 
 expect your Honor to feel compelled to instruct the jury, if Val- 
 landigham were now on trial before a jury, charged with treason, 
 that the case was a serious one, and deserved their most solemn 
 deliberation. His citation from Blackstone gives us a clue, if 
 one were needed, to the whole labyrinth. " How fiir mere words, 
 spoken by an individual, and not relative to any treasonable 
 ACT OR DESIGN THEN IN AGITATION, shall amount to treason, has 
 been formerly matter of doubt." So in his citation from 1 Hale's 
 Pleas of the Crown, 146, a bare detainer, or shutting the gates, 
 
164 APPLICATION FOR 
 
 against the government, might not amount to treason. ^^ But if 
 this hv done ix confederacy WITU enemies, or rebels, (hat circum- 
 stance will make it treason." Again, his citation from 4 Crunch, 
 127 : '• It is not the intention of the Court to say, that no indi- 
 vithuil can be guilty of this crime who has not appeared in arms 
 against his country. On the contrary, if tvar he actually levied^ 
 that is, if a body of men be actually assembled, for the purpose of 
 effecting, by force, a treasonable purpose, all those wuo perform 
 ANY PART, HOWEVER MINUTE, or HOWEVER REMOTE 
 from the scene of action, and who are actually leagued in the 
 general conspiracy, are to be considered as traitors."" 
 
 Admitting that words, or a mere conspiracy to levy war, no 
 war being yet levied; or enlisting of men for war, no war being 
 yet levied, do not amount to actual levying of war, the whole 
 doctrine claimed by counsel, yet the case of Vallandigham has 
 not been reached. War is levied. A body of men is assembled 
 for the purpose of effecting, by force, a treasonable purpose. This 
 body of men has military occupation of a large part of the 
 country. There is no doubt of the establishment of this part of 
 the case. What follows? The Court would tell the jury that 
 " all those who perform any part, however minute, or however 
 remote from the scene of action, and who are actually leagued in 
 the general conspiracy, are guilty of treason." The Court would 
 tell the jury, that the acts of Vallandigham were not too minute 
 nor too remote for guilt. The question for them would be, 
 whether he was actually leagued in the general conspiracy? 
 And this they would be able to form their opinion upon from all 
 the circumstances. They must impute to him a design to accom- 
 plish just what his actions had a tendency to accomplish ; this 
 is the only legal way of ascertaining motives. Wrre the acts 
 of Vallan<ligham apjiarently aimed at the same result with the 
 acts of those unecjuivocally engaged in open treason? His 
 determination to resist Order No. 38, which forbade lending assist- 
 ance to the rebellion, was a circumstance. His former and pres- 
 ent relations with the leading traitors mij^ht be considered. His 
 pretended knowledge of terms offered by those engaged in the 
 rebellion, to the government, not known to the loyal part of the 
 
WRIT OF HABEAS CORPUS. 165 
 
 people, and his hearty indorsement of their side of the negotia- 
 tion, miglit be considered. The jury must remember that many 
 things besides bearing arms were necessary to the success of the 
 general purpose, and so on. If the charges against Vallandig- 
 ham, which stand here without denial, are true, his conviction of 
 treason, before an impartial jury, would be almost certain. IJut 
 on an application for a Habeas Corpus, the Court does not de- 
 termine the question of guilt or innocence. I can not, therefore, 
 see the relevancy of this part of the argument. 
 
 Learned counsel has read to us certain resolutions of the 
 Ohio Legislature, said to have been adopted during the Mexican 
 war, strongly pronouncing against that war, and advising its dis- 
 continuance. Does he claim that there was then on foot any 
 military force levying a trcaaonahle war against the United 
 States? "What, then, has that to do here? What, in any event, 
 has it to do here ? Does he claim that those resolutions were 
 justifiable ? 
 
 Among the numerous instances cited of constructive treason, 
 is one quite touching. A man, whose deer had been killed by 
 the king, wished it, horns and all, in the king's belly. The 
 judge is reported to have held this to be a treasonable saying, 
 and the man was executed. The horns might have been trouble- 
 some, but one would think the horns part might have been 
 pardoned or condoned, considering the manifest benevolence of 
 wishing all the rest of the deer there, also. Why, counsel is 
 seeking to impress us with a sense of the danger of allowing any 
 kind of cases to be withdrawn from the courts; and he reads us 
 instances showing that whatever abuses may have been commit- 
 ted by military men, they fall short of the abuses committed by 
 courts and juries! What has all that to do here? 
 
 May it please your Honor ! I must bring this argument to a 
 close. Are we in a state of war or not ? Did the Constitution, 
 when it authorized war to be made, without limitations, mean war, 
 or something else ? The judicial tribunals provided for in the 
 Constitution, throughout twelve States of the Union, have been 
 utterly ovei'thrown. In several other States they are maintain- 
 
IGO APPLICATION FOR 
 
 ing a feeble and uncertain hold of their jurisdiction. None of 
 them can now secure to parties on trial the testimony from 
 large portions of the country, to which they are entitled by the 
 Constitution and laws. Tlie records of none of them can be used 
 in the districts dominated by the insurrection. They are all 
 struck at by this insurrection. Counsel tells us that, except 
 the Union provided for in the Constitution, there is no legal 
 Union. Yet that Union is, temporarily I hope, but for the 
 present, suspended and annulled. This Court can have no 
 existence except under that Union, and that Union now, in 
 the judgment of those who have been intrusted by the Con- 
 stitution with the duty of preserving it, depends upon the 
 success of its armies. The civil administration can no longer 
 preserve it. 
 
 The courts which yet hold their places, with or without mili- 
 tary support, may perform most useful functions. Their juris- 
 diction and labors were never more wanted than now. But they 
 were not intended to command armies. When Generals and 
 armies were sent here, they were sent to make war according to 
 the laws of war. I have no authority from General Burnside 
 to inquire, and I have hesitated to inquire, but, after all, will 
 venture to inquire, Avhether an interference by this Court with 
 the duties of military command must not tend to disturb that 
 harmony between different branches of government, which, at 
 this time, is most especially to be desired ? 
 
 Counsel expresses much fear of the loss of liberty, through 
 the influence of military ascendency. Are we, on that account, 
 to so tic the hands of our Generals, ns to assure the over- 
 throw of the Constitution by its enemies? I do not share 
 that foar. It has been the fashion of society in ninny coun- 
 tries to be di\i(l('d into grades, and topped out with a single 
 ruling family. In such societies the laws and habits of the 
 people correspond with its social organization. The two ele- 
 ments of power — intelligence and wealth — arc carefully secured 
 in the same hands with political power. It has happened in a 
 number of instances, that a successful General gained power 
 
WRIT OF HABEAS CORPUS. 167 
 
 enough to push the monarch from his throne and scat himself 
 there. In such instances the change was chiefly personal. Lit- 
 tle change was necessary in the social organization, laws or 
 habits. It has also happened that democracies or republics, which 
 have, by a long course of corruption, lost the love and practice 
 of virtue, have been held in order by a strong military hand. 
 But in this country no man can gain by military success a danger- 
 ous ascendency, because the change would require to be preceded 
 by a change in the whole body of laws, in the habits, opinions, and 
 social organization. History furnishes no example of a success- 
 ful usurpation under similar circumstances, and reason assures 
 me it would prove impossible. Our society has no element on 
 which usurpation could be founded. My sleep is undisturbed, 
 and my heart quite fearless in that direction. I do not fear that 
 we shall lose our respect for the laws of peace by respecting 
 the laws of war ; nor our love for the Constitution by the sac- 
 rifices we make to uphold it. I do not fear any loss of demo- 
 cratic sympathies by the brotherhood of camps. I do not fear 
 any loss of the love of peace by the sufferings of war. I am 
 not zealous to preserve, to the utmost punctilio, any civil right 
 at the risk of losing all, when all civil rights are in danger of 
 overthrow. The question of civil liberty is no longer within 
 the arbitrament of our civil tribunals. It has been taken up to 
 a higher court, and is now pending before the God of Battles. 
 May he not turn away from the sons whose fathers he favored! 
 As he filled and strengthened the hearts of the founders of our 
 liberty, so may he fill and strengthen ours with great constancy ! 
 Now, Avhile awaiting the call of that terrible docket, while drum- 
 beats roll from the Atlantic Ocean to the Rocky Mountains, while 
 the clear sound of bugles reaches fiir over our once peaceful hills 
 and valleys; now, when the hour of doom is about to strike, let us 
 lose all sense of individual danger; let us lay upon a common 
 altar all private griefs, all personal ambitions; let us unite in 
 upholding the army, that it may have strength to rescue from 
 unlawful violence, and restore to us the body of the American 
 Union — E Phiribus Unum! Above all, Almighty God! if it 
 
168 
 
 cot*^' 
 
 xt.^^\ 
 
 ArPLICATION FOR WrJT OF 
 
 shall please thee to subject us to still 
 
 if it be thy will that we pass furtht 
 
 noss of disorder, yet may some little 
 
 move thee to a touch of pity! Spare us .. 
 
 degradation! Save! save us from the littleness to be jealous 
 
 of our defenders ! 
 
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 vun that last human 
 
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