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opiisrioisr 
 
 OF 
 
 JUDGE N. K. HALL, 
 
 OF THE 
 
 NITED STATES DISTRICT COURT FOR THE NORTHERN DIS¬ 
 TRICT OF NEW-YORK, 
 
 ON 
 
 HABEAS CORPUS, 
 
 « 
 
 IN THE CASE OF 
 
 REV. JTTDSON D. BENEDICT. 
 
 
 NEW-YORK: 
 
 OFFICE OF NEW-YORK ARGUS: COMSTOCK AND CASSIDY, PROPRIETORS. 
 
 1862. 
 
 JOHN A. GRAY, PRINTER, 16 AND 18 JACOB STREET. 
 
 
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 JUDGE HALL’S OPINION 
 
 The Opinion of Judge Hall, now printed, is on a topic popular in its nature, and of an interest personal, 
 political and universal. 
 
 Military power, in exclusion of all existing civil process of law, is now claimed throughout the loyal State* 
 to be exercised by Provost Marshals. To those who enforce it, their friends and supporters, this may 
 harmless or trifling; not so to those who are, or may he, its victims. 
 
 To he arrested, for one knows not what; to he confined, no one entitled to ask where; to be tried, no one 
 can say when,—by a law nowhere known or established; or to linger out life in a cell, without trial, presents a 
 body of tyranny which cannot he enlarged. 
 
 To prevent this is the office of the Writ of Habeas Corpus. 
 
 It would not seem wisdom, in those who established our liberty, to have conferred on the Executive, who 
 was to exercise it, the right of determining when he should put forth the power of suspending the laws protect¬ 
 ing the liberties of the people. The uniform opinion, until lately, has been that it was in the power only of 
 Congress, whose office it is to make and repeal laws, to suspend our lawful liberty. Its members are speedily 
 and directly responsible to the people, and are themselves subject to the irresponsible power which they may 
 invoke. In this there may be some security. In mere Executive legislation, supported by military force, there 
 is none. 
 
 On this vital matter, Judge Hall’s decision is clear, forcible and convincing. The Opinion is called forth in 
 the regular course of his duty, by a case arising in the ordinary progress of life. It is not an opinion volunteered. 
 It is not written to uphold a power on which he is dependent. It is not purchased by hope of promotion. It is 
 the calm judgment of a learned magistrate, deciding for law and liberty. Its principles equally touch property 
 and life. No person can he insensible to its importance, and there is no one whom it does not concern. 
 
 As members of a profession whose highest office and gravest duty it is to protect, preserve and defend the 
 liberty of the citizen, we ask the universal perusal of this judgment. 
 
 New York, October, 1862. 
 
 ALEXANDER HAMILTON, Jr., 
 EDWARD H. OWEN, 
 
 WILLIAM BETTS, 
 
 C. O'CONOR, 
 
 F. F. MARBURY, 
 
 J. E. BURRILL, 
 
 W. C. PRIME, 
 
 WASHINGTON Q. MORTON, 
 THOMAS H. RODMAN, 
 JEREMIAH LAROCQUE, 
 WALTER L. LIVINGSTON, 
 
 E. J. WILSON, 
 
 BEVERLEY ROBINSON, 
 CLARKSON N. POTTER, 
 GEORGE A. HALSEY, 
 
 J. A. STOUTENBURGH, 
 RICHARD O’GORMAN, 
 SAMUEL L. M. BARLOW, 
 
 G. M. SPEIR, 
 
 DANIEL LORD, 
 
 JAMES T. BRADY, 
 
 E. W. STOUGHTON, 
 GREENE C. BRONSON, 
 G. R. J. BOWDOIN, 
 
 W. C. WETMORE, 
 NELSON CHASE, 
 
 JOHN N. WHITING, 
 
 L. S. CHATFIELD, 
 JOSEPH LAROCQUE, 
 JOHN McKEON, 
 
 A. MANN, Jr., 
 
 GEORGE BUCIvHAM, 
 GILBERT DEAN, 
 
 C. DONOHUE, 
 
 F. F. STALLKNEGHT, 
 WILLIAM C. BARRETT, 
 HAMILTON MORTON. 
 

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JUDGE HALL’S OPINION 
 
 ON 
 
 HABEAS CORPUS, 
 
 IN THE CASE OF 
 
 JUDSOIST D. BENEDICT. 
 
 -•- 
 
 IN THE MATTER OF ) 
 
 JUDSON D. BENEDICT, f 
 
 Hall, District Judge. 
 
 The application for the writ of habeas corpus , in 
 this case, was made while I was engaged in other 
 duties; and although I retained the petition and 
 gave the questions presented a hasty examination, 
 before I allowed the writ, I had no time to prepare 
 an opinion upon the questions which then occurred 
 to me as necessary to be considered before grant¬ 
 ing the petitioner’s application. I therefore simply 
 made a note of the authorities examined; and, as 
 the case is one of importance, I shall now state 
 my opinion upon the questions considered at the 
 time the petition for the habeas corpus was under 
 consideration; and shall refer to the authorities 
 then examined, and some others, which appear to 
 me to require the exercise of the jurisdiction and 
 authority invoked by the petitioner. 
 
 The Act of Congress of September 24,1789 (the 
 Judiciary Act), declares that “either of the Jus¬ 
 tices of the Supreme Court, as well as Judges of 
 the District Courts, shall have power to grant 
 writs of habeas corpus for the purpose of an in¬ 
 quiry into the cause of commitment:—Provided 
 that writs of habeas corpus shall in no case extend 
 to prisoners in jail, unless where they are in cus¬ 
 tody, under or by color of the authority of the 
 United States, or are committed for trial before 
 some court of the same, or are necessary to be 
 brought into court to testify.” 
 
 It appears, by the petition and affidavits an¬ 
 nexed, that the petitioner is confined in jail, and 
 that the only cause of his detention rendered by 
 the jailer, is a paper delivered to him by A. G. 
 Stevens, Deputy U. S. Marshal, of which the fol¬ 
 lowing is a copy: 
 
 “Marshal’s Office, ) 
 Buffalo, September 2d, 1862. J 
 
 David M. Grant will take from Fort Porter, Thomas 
 Cummings, James Parker, Antoine Quantent, Noah 
 B. Clark, and Jared Benedict, prisoners confined 
 there, committed under orders of the War Depart¬ 
 ment, and remove them to the Erie County Jail for 
 safe keeping, and there detain them until further 
 order, and the Sheriff or Jailor of said County will 
 keep them until further order, in said Jail. 
 
 (Signed) A. G. STEVENS, 
 
 U. S. Dep. Marshal. 
 
 “ To Col. E. P. Chapin, and the Sheriff, and Jailor of 
 Erie County.” 
 
 From this it clearly appears that the petitioner 
 is in custody by color of the authority of the 
 United States, either under the orders of the War 
 Department, or of the Deputy Marshal, who is an 
 officer deriving his authority, as such, from the 
 United States. 
 
 The petition further shows that when the Dep¬ 
 uty Marshal was applied to by the counsel for the 
 petitioner, and asked “ If he arrested the petitioner 
 by virtue of any order, process or paper,” that 
 officer said he did not, but showed the counsel a 
 slip, cut from a newspaper, purporting to contain 
 a copy of an order of the War Department, in the 
 following words: 
 
 “War Department, ) 
 Washington, August 8th, 1862. f 
 
 Ordered First—That all United States Marshals, and 
 Superintendents, and Chiefs of Police, of any town, 
 city or district, be and they are hereby authorized 
 and directed to arrest and imprison any person or 
 persons who may be engaged, by act, speech or 
 writing, in discouraging volunteer enlistments, or in 
 any way giving aid and comfort to the enemy, or in 
 any other disloyal practice against the United States. 
 Second—That immediate report be made to Major L. 
 C. Turner, Judge Advocate, in order that such persons 
 may be tried before a military commission. 
 
 Third—That the expenses of such arrest and imprison¬ 
 ment will be certified to the Chief Clerk of the War 
 Department, for settlement and payment. 
 
 (Signed) EDWIN M. STANTON, 
 
 Secretary of War.” 
 
 The affidavit of the counsel also states that the 
 Deputy Marshal, at the same time, said, “ that 
 printed slip was his only authority tor the arrest 
 of said Benedict.” 
 
 The petitioner states in his petition that he “ is 
 not committed or detained by virtue of any pro¬ 
 cess issued by any court of the United States, or 
 any Judge thereof, or by virtue of the final judg¬ 
 ment or decree of any court, or by virtue of any 
 process of any kind or description; that he has 
 neither by act or speech been disloyal to the Con¬ 
 stitution or laws of the United States, or been 
 guilty of any violation of any order of the War 
 Department, or of the President of the United 
 States, or been guilty of any offense or act subject¬ 
 ing him to arrest;” and this petition is verified by 
 the oath of the petitioner. 
 
 On the case thus made by the petitioner, I 
 should have granted a habeas corpus at once, on 
 the first reading of his petition and the accompa¬ 
 nying affidavits, had I not seen a newspaper copy 
 
6 
 
 of an order of the War Department assuming to 
 suspend, in certain cases, the privilege of the writ 
 
 of habeas corpus. 
 
 This order bears the same date as that referred 
 to by the Deputy Marshal, and is in the following 
 words: 
 
 “War Department, ) 
 Washington, August 8th, 1862. f 
 
 Order to prevent evasion of military duty and for 
 suppression of dieloyal practices. 
 
 First—By direction of the President of the United 
 States, it is hereby ordered that, until further order, 
 no citizen liable to be drafted into the militia shall 
 be allowed to go to a foreign country, and all Mar 
 shals, Deputy Marshals, and military officers of the 
 United States are directed, and all police authori¬ 
 ties, especially at the porta of the United States on 
 the seaboard and on the frontier, are requested, to 
 see that this order is faithfully carried into effect 
 And they are hereby authorized and directed to arrest 
 and detain any person or persons about to depart 
 from the United States, in violation of this order, 
 and report to L. C. Turner. Judge Advocate, at 
 Washington City, for further instruction respecting 
 the person or persons so arrested or detained. 
 
 Second—Any person liable to draft, who shall absent 
 himself from his county or State, before such draft is 
 made, will be arrested by any Provost Marshal or 
 other United States or State officer, wherever he may 
 be found within the jurisdiction of the United States, 
 and conveyed to the nearest military post or depot, 
 and placed on military duty for the term of the 
 draft; and the expenses of his own arrest and con¬ 
 veyance to such post or depot, and also the sum of 
 five dollars as a reward to the officer who shall make 
 such arrest, shall be deducted from his pay. 
 
 Third—The writ of habeas corpus is hereby suspended 
 in respect to all prisoners so arrested and detained, 
 and in respect to all persons arrested for disloyal 
 practices. 
 
 (Signed) EDWIN M. STANTON. 
 
 Secretary of War.” 
 
 These two orders of the War Department, bear¬ 
 ing the same date, may properly be considered to¬ 
 gether, and as relating to the same general sub¬ 
 ject. Whether issued separately or together; 
 whether, if issued separately, the one referred to 
 by the Deputy Marshal was first issued or not, it 
 may not be very material to inquire ; but, as that 
 declares that “ All United States Marshals, and 
 Superintendents, and Chiefs of Police of any town, 
 city or district, be and they are hereby authorized [ 
 and directed to arrest and imprison any person or 
 persons who may be engaged, by act, speech or 
 writing, in discouraging volunteer enlistments, or 
 in any way giving aid and comfort to the enemy, 
 or in any other disloyal practice against the United 
 States and the other order assumes to suspend 
 the writ of habeas corpus in respect not only to all 
 persons arrested and detained by virtue thereof, 
 but also “ in respect to all persons arrested for 
 disloyal practices ” (a term not otherwise con¬ 
 tained in that order), it may be presumed that the 
 order referred to by the Deputy Marshal was first 
 issued, and that the other order was intended to 
 suspend the writ of habeas corpus in respect to 
 persons arrested under that order, or under the 
 order referred to by the Deputy Marshal. 
 
 If the order declaring the writ of habeas corpus 
 to be suspended can be considered as legal and 
 valid, it is necessary to consider its scope and ef¬ 
 fect, and, as both questions are therefore properly 
 before me, I shall consider both in their order. 
 
 It is to be observed that the order first recited 
 confines the power of arrest to United States Mar¬ 
 shals and Superintendents and Chiefs of Police, 
 while the second order, in respect to the cases 
 within it, extends the power to all Deputy Marshals 
 and all military officers of the United States, and 
 to all police authorities. These officers, many 
 thousands in number, and of every grade of intel¬ 
 ligence, are scattered over every portion of our 
 country. To all of these this arbitrary power of 
 arrest, without warrant, without any prior legal 
 inquiry, and without the slightest preliminary proof 
 of guilt, is assumed to be given. Was it intended, 
 then, that every policeman and every military offi¬ 
 cer throughout the loyal States, and in localities 
 far removed from the seat of military operations, 
 should be authorized to arrest and imprison any 
 citizen, and that if, on taking the party into eue- 
 tody, or afterwards, such officer should declare 
 that he made the arrest by virtue of the orders of 
 the War Department of August 8, 1862, or for 
 disloyal practices, he could keep him in prison, or 
 in his own custody, or compel him to enter the 
 military service, and also require all judicial offi¬ 
 ce!*, when the prisoner or his friends applied for a 
 writ of habeas corpus , that the facts of the case 
 might be judicially ascertained and the question 
 of the legality of his arrest and detention consid¬ 
 ered, to say, “ The privilege of the writ of habeas 
 corpus is suspended, and you can have no relief?” 
 Is every man supposed to be subject to militia 
 duty, who has left or shall leave his county since 
 the 8th of August last, and prior to the unknown 
 day in the future when a draft is to be made, no 
 matter under what circumstances, to be punished 
 by being forced into the military service for nine 
 months, without any hearing, without any oppor¬ 
 tunity to show that he is exempt from militia duty, 
 when the Constitution provides that “ no person 
 shall be deprived of life, liberty or property, with¬ 
 out due process of law ?” I am aware that these 
 restraints upon travel have been removed, but was 
 that the original intention of the order ? 
 
 My personal confidence in the integrity, patriot¬ 
 ism and good sense of the President, as well as 
 the respect due to the high office he holds, com¬ 
 pels me to require the most conclusive evidence 
 upon the point before adopting the conclusion that 
 he has ever deliberately sanctioned so palpable a 
 violation of the constitutional rights of the citi¬ 
 zens of the loyal States as the order of the War 
 Department, thus construed, would justify and re¬ 
 quire. 
 
 Here, and throughout most of the loyal States, 
 we are far removed from the several fields of mili¬ 
 tary operation. All the arts and occupations of 
 peace can be and are pursued in entire security, 
 and all the laws of the State and Union can be 
 administered by the ordinary Courts of justice as 
 freely, as fully, and as efficiently, as in time of 
 profound peace. The execution of the laws of the 
 land has not been resisted by our people. On the 
 contrary, they have responded to the calls of the 
 General Government with unexampled unanimity 
 and alacrity, and have offered their blood and their 
 j treasure without stint to maintain the authority of 
 
7 
 
 constitutional government. They have waited for 
 no conscription, but have sent hundreds of thou¬ 
 sands of volunteers into the field to meet, without 
 complaint, all the exposures, all the vicissitudes 
 and all the dangers of the camp and the battle¬ 
 field. Without waiting for the tax-gatherer, they 
 have voluntarily and freely contributed untold 
 millions to hasten the departure of these volun¬ 
 teers and strengthen the arm of the Government 
 established under the Constitution of the Union. 
 Is it possible that such orders as those above 
 copied were intended to operate upon such a peo¬ 
 ple, in the loyal States, and place their liberties 
 at the mercy of every military officer, every officer 
 of police, and every policeman, and then to sus¬ 
 pend the writ of habeas corpus in such manner as 
 to prevent a judicial inquiry into the question 
 whether the facts of the case would justify an ar¬ 
 rest, even under such orders ? Can a man not 
 liable to do military duty be arrested under such or¬ 
 der, and be detained by force in the military ser¬ 
 vice, without the privilege of showing his exemp¬ 
 tion and procuring his discharge from such illegal 
 restraint ? Could it have been intended that mil¬ 
 itary officers of every grade, and policemen of 
 every class, throughout the loyal States, acting 
 upon their own suspicions, or upon any representa¬ 
 tion which political prejudice, personal malignity, 
 or other motives might suggest, or in the mere 
 wantonness of unusual and arbitrary power, should 
 be authorized to arrest and imprison any citizen, 
 without the possibility of a judical investigation ? 
 Is every official to whom these orders are addressed 
 to determine for himself wha 1 ; shall constitute dis¬ 
 loyal practices —a term not known to the law, which 
 has no fixed or reasonably certain definition, and 
 which every arresting officer i3 left to interpret as 
 his prejudices, his passions or his interest may in¬ 
 cline ? And is such interpretation to be subject 
 to no revision, except by a Judge Advocate at the 
 seat of Government, acting upon extra-judicial, if 
 not entirely ex parte testimony, in the absence of 
 the accused ? Such a construction of the order 
 would place the liberty of every citizen at the 
 mercy of any of these officials, one of whom might 
 conclude that to speak disparagingly of the mili¬ 
 tary ability and military conduct of General Mc¬ 
 Clellan was a disloyal practice, and tended to 
 discourage volunteer enlistments; while another 
 might consider the abuse of McClellan a virtue, 
 and hold the expression of a doubt of the super¬ 
 lative ability of Fremont as a disloyal practice of 
 the deepest dye; and yet another might suppose 
 that any person who should read aloud the news¬ 
 paper accounts of the retreat of General Pope’s 
 army from the Rapid Ann to the Potomac, and ex¬ 
 press a doubt of the competency of that General, 
 was discouraging enlistments and giving aid and 
 comfort to the enemy. 
 
 I confess, nevertheless, that there is some rea¬ 
 son for assuming that the fair construction of the 
 language of the order of the War Department, if 
 it could properly be considered without reference 
 to the provisions of the Constitution of the United 
 States, would lead us to conclude that the privilege 
 of the writ of habeas corpus was intended to be 
 
 suspended in all the cases supposed, and I under¬ 
 stand such a construction has been sometimes in¬ 
 sisted upon; but when I consider that the Consti¬ 
 tution has imposed restraints upon the arbitrary 
 exercise of military power (at least beyond the 
 lines of military operations), I am unwilling to 
 adopt that construction without strong evidence 
 that such was the intention of the orders referred 
 to. Such a construction of these orders, if their 
 validity can be established, would go far towards 
 making our Government a despotic instead of a 
 constitutional Government. 
 
 Even in the midst of our present struggle, we 
 should not forget the teachings and history of the 
 past, and regard as trivial and unimportant, con¬ 
 stitutional principles, the persistent violation of 
 which has led to the dethronement of kings and 
 the overthrow of long established forms of govern¬ 
 ment. We should not forget the lettres du caehet 
 of the French monarchs, or the illegal imprison¬ 
 ments under Charles the First. In our efforts to 
 read aright and profit by the terrible lesson which 
 the present condition of our unhappy country pre¬ 
 sents, we should not forget what Hume, and Hal- 
 lam, and Blackstone, and Marshall, and Story, and 
 Kent, have taught us. The language of Black- 
 stone [1. Blackstone’s Com., 134, 135, 186] has 
 been often quoted and approved, and it states with 
 accuracy the laws and Constitution of England, 
 and the practice of the French monarchy at the 
 time he wrote. This, with the proceedings of the 
 House of Commons upon the celebrated Petition 
 of Right, shows the importance which the sore ex¬ 
 perience of the people of England had given to the 
 questions involved in the present case. Black- 
 stone says: [vol. 1, p. 134] “Next to personal se¬ 
 curity, the law of England regards, asserts, and 
 preserves the personal liberty of individuals. This 
 personal liberty consists in the power of locomo¬ 
 tion, of changing situation, or moving one’s person 
 to whatsoever place one’s own inclination may 
 direct, without imprisonment or restraint, unless 
 by due course of law. Concerning which we may 
 make the same observations as upon the preceding 
 article, that it is a right strictly natural; that the 
 laws of England have never abridged it without 
 sufficient cause ; and that in this kingdom it can¬ 
 not ever be abridged at the mere discretion of the 
 magistrate, without the explicit permission of the 
 laws. Here again the language of the great char¬ 
 ter is, that no freeman shall be taken or imprison¬ 
 ed but by the lawful judgment of his equals, or by 
 the law of the land. And many subsequent old 
 statutes expressly direct that no man shall be 
 taken or imprisoned by suggestion or petition to 
 the King or his Council, unless it be by legal in¬ 
 dictment, or the process of the common law. By 
 the petition of right [3 Car. I]: It is enacted that 
 no freeman shall be imprisoned or detained with¬ 
 out cause shown, to which he make answer ac¬ 
 cording to law. By 16, Car. I, c. 10, if any per¬ 
 son be restrained of his liberty by order or decree 
 of any illegal court, or by command of the King’s 
 Majesty in person, or by warrant of the Council 
 Board, or of any of the Privy Council, he shall, 
 upon demand of his counsel, have a writ of habeas 
 
8 
 
 corpus , to bring his body before the Court of 
 King’s Bench or Common Pleas, who shall deter¬ 
 mine whether the cause of his commitment be just, 
 and thereupon do as to justice shall appertain. 
 An d by 31 Oar. II, c. 2, commonly called the ha¬ 
 beas corpus act, the methods of obtaining this writ 
 were so plainly pointed out and enforced, that so 
 long as this statute remains unimpeached, no sub¬ 
 ject of England can be long detained in prison, ex¬ 
 cept in those cases in which the law requires and 
 justifies such detainer. And lest this act should 
 be evaded by demanding unreasonable bail, or 
 sureties, for the prisoner’s appearance, it is de¬ 
 clared by 1st W. and M., st. 2, c. 2, that excessive 
 bail ought not to be required. 
 
 “ Of great importance to the public is the preser¬ 
 vation of this personal liberty ; for, if once it were 
 left in the power of any, the highest magistrate, to 
 imprison whomever he or his officers thought 
 proper (as in France it is daily practiced by the 
 Crown), there would soon be an end of all other 
 rights and immunities. Some have thought that 
 unjust attacks, even upon life and property, at the 
 arbitrary will of the magistrate, are less dangerous 
 to the commonwealth than such as are made upon 
 the personal liberty of the subject. To bereave a 
 man of life, or by violence to confiscate his estate, 
 without accusation or trial, would be so gross and 
 notorious an act of despotism as must at once 
 convey the alarm of tyranny throughout the whole 
 kingdom; but confinement of the person, by se¬ 
 cretly hurrying him to jail, where his sufferings 
 are unknown or forgotten, is a less public, a less 
 striking, and therefore a more dangerous engine of 
 arbitrary government. And yet, sometimes when 
 the State is in danger, even this may be a neces¬ 
 sary measure. But the happiness of our Constitu¬ 
 tion is, that it is not left to the executive power to 
 determine when the danger of the State is so great 
 as to render this measure expedient; for it is the 
 Parliament only, or legislative power, that, when¬ 
 ever it sees proper, can authorize the Crown, by 
 suspending the habeas corpus act for a short and 
 limited time, to imprison suspected persons with¬ 
 out giving any reason for so doing ; as the Senate 
 of Rome was wont to have recourse to a dictator, 
 a magistrate of absolute authority, when they 
 judged the Republic in any imminent danger.” 
 
 Again, Blackstone says [vol. iii, pp. 133, 134 
 and 135] : “In a former part of these commenta¬ 
 ries we expatiated at large on the personal liberty 
 of the subject. This was shown to be a natural, 
 inherent right, which could not be surrendered or 
 forfeited unless by the commission of some great 
 and atrocions crime, and which ought not to be 
 abridged in any case without the special permis¬ 
 sion of law. A doctrine coeval with the first rudi¬ 
 ments of the English Constitution, and handed 
 down to us from our Saxon ancestors, notwith¬ 
 standing all their struggles with the Danes, and 
 the violence of the Norman conquest; asserted 
 afterwards and confirmed by the Conqueror him¬ 
 self and his descendants, and though sometimes a 
 little impaired by the ferocity of the times, and 
 the occasional despotisms of jealous and usurping 
 princes, yet established on the firmest basis by the 
 
 provisions of magna charia , and a long succession 
 of statutes enacted under Edward III. To assert 
 an absolute exemption from imprisonment in all 
 cases, is inconsistent with every idea of law and 
 political society, and in the end would destroy all 
 civil liberty, by rendering its protection impossi¬ 
 ble ; but the glory of the English law consists in 
 clearly defining the times, the causes, and the ex¬ 
 tent, when, wherefore, and to what degree, the 
 imprisonment of the subject may be lawful. This 
 it is which induces the absolute necessity of ex¬ 
 pressing upon every commitment the reason for 
 which it is made, that the court, upon a habeas 
 corpus , may examine into its validity; and, accord¬ 
 ing to the circumstances of the case, may dis¬ 
 charge, admit to bail, or remand the prisoner; and 
 yet, early in the reign of Charles I, the Court of 
 King’s Bench, relying upon some arbitrary prece¬ 
 dents (and those perhaps misunderstood), deter¬ 
 mined that they could not, upon a habeas corpus , 
 either bail or deliver a prisoner, though commit¬ 
 ted without any cause assigned, in case he was 
 committed by the special command of the King, 
 or by the Lords of the Privy Council. Thi3 drew 
 on a parliamentary inquiry, and produced the peti¬ 
 tion of right [3 Car. I], which recites this illegal 
 judgment, ana enacts that no freeman hereafter 
 shall be so imprisoned or detained. But when, in 
 the following year, Mr. Selden and others were 
 committed by the Lords of the Council, in pursu¬ 
 ance of his Majesty’s special command, under a 
 general charge of “ notable contempts and stirring 
 up sedition against the King and Government,” 
 the judges delayed for two terms (including also 
 the long vacation), to deliver an opinion how far 
 such a charge was bailable. And when at length 
 they agreed it was, they, however, annexed a con¬ 
 dition of finding sureties for their good behavior, 
 which still protracted their imprisonment; the 
 Chief Justice, Sir Nicholas Hide, at the same time 
 declaring that, “ if they were again remanded for 
 that cause, perhaps the court would not afterwards 
 grant a habeas corpus , being already made ac¬ 
 quainted with the cause of their imprisonment. 
 But this was heard with indignation and astonish¬ 
 ment by every lawyer present; according to Mr. 
 Selden’s own account of the matter, whose resent¬ 
 ment was not cooled at the distance of four and 
 twenty years. 
 
 “ These pitiful evasions gave rise to the statute 
 (16 Car., I, c. 10, § 8), whereby it is enacted, that 
 if any person be committed by the King himself, 
 in person, or by his Privy Council, or any of the 
 members thereof, he shall have granted to him 
 without delay, upon any pretense whatsoever, a 
 writ of habeas corpus , upon demand or motion 
 made to the Court of the King’s Bench, or Com¬ 
 mon Pleas; who shall thereupon, within three 
 court days after the return is made, examine and 
 determine the legality of such commitment, and do 
 what to justice shall appertain, in delivering, bail¬ 
 ing, or remanding such prisoner. Yet, still in the 
 case of Jenks, before alluded to, who, in 1676, 
 was committed by the King in council, for a tur¬ 
 bulent speech at Guildhall, new shifts and devices 
 were made use of to prevent his enlargement by 
 
9 
 
 law, the Chief Justice (as well as the Chancellor) 
 declining to award a writ of habeas corpus ad subji¬ 
 ciendum, in vacation, though at last he thought 
 proper to award the usual writs ad deliberandum , 
 &c., whereby the prisoner was discharged at the 
 Old Bailey. Other abuses had also crept into ; 
 daily practice, which had, in some measure, de¬ 
 feated the benefit of this great constitutional rem¬ 
 edy. The party imprisoning was at liberty to de¬ 
 lay his obedience to the first writ, and might wait 
 till a second and third, called an alias and pluries , 
 were issued, before he produced the party; and 
 many other vexatious shifts were practiced to de¬ 
 tain State prisoners in custody. But whoever wil 
 attentively consider the English history may obi 
 serve that the flagrant abuse of any power, by the- 
 Crown or its ministers, has always been productive 
 of struggle, which either discovers the exercise of 
 that power to be contrary to law, or if legal, re¬ 
 strains it for the future. This was the case in the 
 present instance; the oppression of an obscure in¬ 
 dividual gave birth to the famous habeas corpus 
 act (31 Car. II, § 2), which is frequently considered 
 as another magna charta of the kingdom; and, 
 by consequence and analogy, has also in subse¬ 
 quent times reduced the general method of pro¬ 
 ceeding on those writs (though not within the 
 reach of that statute, but issuing merely at the 
 common law), to the true standard of law and 
 liberty.” 
 
 The complaint contained in the 3d, 4th and 5th 
 articles of the Petition of Right, referred to by Mr. 
 Justice Blackstone, and to which the reluctant 
 consent of Charles the 1st was enforced by the 
 English House of Commons (Hume’s History of 
 England, chap. 51, and copy of petition in note ; 
 and see Hallam, chap. 1), related to illegal arrests 
 and imprisonments, and the denial of relief upon 
 habeas corpus. These articles are as follows: 
 
 “ III. And whereas, also, by the statute called 
 The great charter of the liberties of England, 
 it is declared and enacted, That no freeman 
 may be taken or imprisoned, or be disseized 
 of bis freehold or liberties, or his free cus¬ 
 toms, or be outlawed or exiled, or in any 
 manner destroyed, but by the lawful judg¬ 
 ment of his peers, or by the law of the land. 
 
 IV. And in the eighth and twentieth year of the 
 reign of King Edward III, it was declared and 
 enacted by authority of Parliament, That no 
 man of what estate or condition that he be, 
 should be put out of his land or tenements, 
 nor taken, nor imprisoned, nor disherited, 
 nor put to death, without being brought to 
 answer by due process of law. 
 
 V. Nevertheless, against the tenor of the said 
 statutes and other, the good laws and statutes 
 of your realm to that end provided, divers of 
 your subjects have of late been imprisoned 
 without any cause showed; and when for 
 their deliverance, they w r ere brought before 
 justice, by your Majesty’s writs of habeas cor¬ 
 pus , there to undergo and receive as the 
 Court should order, and their keepers com¬ 
 manded to certify the cause of their detainer, 
 no cause was certified, but that they were de¬ 
 
 tained by your Majesty’s special command, 
 signified by the Lords of your Privy Council, 
 and yet were returned back to several pri¬ 
 sons, without being charged with anything to 
 which they might make answer according to 
 the law.” 
 
 And by the tenth article of this Petition of 
 Right, it was prayed among ether things, “ that no 
 freeman, in any such manner as is before men¬ 
 tioned, be imprisoned or detained,” and to this, 
 Charles 1st, after much delay and a prior evasive 
 answer, was at last compelled by the House of 
 Commons to yield his assent in the customary 
 form, “ Let it "be law as is desired and thereby, 
 as Hume says, “ gave full sanction and authority 
 to the petition.” It is true, that he afterwards 
 acted in violation of the rights thus solemnly re¬ 
 cognized ; but it is equally true, that his head was 
 brought to the block by his oppressed and indig¬ 
 nant people. 
 
 No further discussion can be necessary to show 
 the importance of the principles involved in this 
 case, or the duty of every judicial officer to con¬ 
 strue, with all reasonable strictness, the doubtful 
 language of an executive order capable of being 
 made the instrument of innumerable and gross en¬ 
 croachments upon the liberty of the citizen.—* 
 There may be some ground for doubt in regard to 
 the true construction of the orders of the W ar 
 Department of August 8, 1862, but I am inclined 
 to think they were not intended to have the opera¬ 
 tion and effect which it has, as I understand, been 
 contended should be given to them, in accordance 
 with what is alleged to be their literal meaning 
 and effect. 
 
 However that may be, in the view that I have 
 felt compelled to take in regard to another ques¬ 
 tion arising in the case, I do not deem it necessary 
 to say more in respect to the proper construction 
 of this order. The question referred to is, whether 
 the privilege of the writ of habeas corpus has been, 
 in any case, legally suspended? 
 
 In considering this question I shall not inquire 
 whether the order under consideration was made, 
 or purports to be made, by or under the autho¬ 
 rity of the President of the United States. The 
 use of the words, “ By direction of the President 
 of the United States,” in the first subdivision of 
 the order, and their omission in the second and 
 third subdivisions, may cast some doubt upon the 
 point, but for the purpose of the present question 
 I shall assume that the first and second orders of 
 the 8th of August, 1862, are in fact and in law the 
 orders of the President of the United States. 
 
 Can the President, then, without the authority 
 of Congress, suspend the privilege of the writ of 
 habeas corpus ? 
 
 When the counsel for the petitioner, some days 
 since, suggested that he desired to apply for a 
 habeas corpus to bring up the body of the petition¬ 
 er, I had the impression that Congrsss, at its late 
 session, had passed an act authorizing the Presi¬ 
 dent to suspend the privilege of the writ of habeas 
 corpus , and that he had sanctioned the order of 
 the War Department, under such authortty. If 
 this had been the case, I should have held it to be 
 
10 
 
 iny duty to refuse the writ, in a case within the ' 
 scope of the law of Congress, and the order of the 
 President:—but having, since that suggestion was 
 made, received the acts of the last session, I find 
 that I was mistaken, and that Congress has passed 
 no law on this subject. The question of the power 
 of the President to suspend the privilege of the 
 habeas corpus , without the authority of Congress, 
 is therefore presented in this case, if the order of 
 the War Department is deemed to be the order of 
 the President, and to extend to such a case as that 
 now under consideration. 
 
 This question is one of constitutional law and 
 constitutional construction, and was, I think, gen¬ 
 erally considered as no longer open to controversy, 
 until it was brought prominently before the public 
 by the case of Merryman, before the learned and 
 venerable Chief Justice of the United States. In 
 that case (24 Boston Law Reporter, page J8 and 
 *79), the highest judicial officer of the United 
 States, did not hesitate to declare, in respect to 
 the claim that the President had the power to sus¬ 
 pend the privilege of the writ of habeas corpus, 
 “that he listened to it with some surprise, for I'’ 
 [he] “ had supposed it to be one of those points of 
 constitutional law upon which there was no differ¬ 
 ence of opinion, and that it was admitted on all 
 hands that the privilege of the writ could not be 
 suspended, except by act of Congress.” 
 
 The clause, upon which the question arises, is 
 found in the first article of the Constitution of 
 the United States, which treats of Congress and 
 its powers, and is in these words: “ The privilege of \ 
 the writ of habeas corpus shall not be suspended , i 
 unless when , in cases of rebellion or invasion , the 
 public safety may require it and the reasoning 
 of the Chief Justice in the case referred to, is suf¬ 
 ficient, in my judgment, to show that the power 
 of suspension is a legislative, and not an execu¬ 
 tive power, and must be exercised, or its exercise 
 authorized by Congress. 
 
 But the question does not rest upon the rea¬ 
 soning or authority of the present Chief J ustice. 
 He properly cited the authority of Chief Justice 
 Story, and of the Supreme Court of the United 
 States when the Chief Justice’s seat was filled by 
 John Marshall, the ablest constitutional lawyer 
 our country has produced. I cannot forbear now 
 to quote that portion of the opinion of the Chief 
 Justice which refers to the authority of Mr. Jus¬ 
 tice Story, and of the Supreme Court of the Uni¬ 
 ted States. The Chief Justice says: “But I am 
 not left to form my judgment upon this great 
 question from analogies between the English gov¬ 
 ernment and our own, or the commentaries of 
 English jurists, or the decisions of English Courts, 
 although upon this subject they are entitled to 
 the highest respect and are justly regarded as 
 authoritative by our courts of justice. To guide 
 me to a right conclusion, I have the commentaries 
 on the Constitution of the United States, of the 
 late Chief Justice Story, not only one of the most 
 eminent jurists of the age, but for a long time 
 one of the brightest ornaments of the Supreme 
 Court of the United States, and also the clear and 
 authoritative decision of that Court itself, given 
 
 more than a half century since, and conclusively 
 establishing the principles I have above stated. 
 
 Mr. Justice Story, speaking in his Commenta¬ 
 ries of the habeas corpus clause in the Constitu¬ 
 tion, says, “ It is obvious that cases of a peculiar 
 emergency may arise which may justify, nay, even 
 require the temporary suspension of any right to 
 the writ. But as it has frequently happened in 
 foreign countries, and even in England, that the 
 writ has, upon various pretexts and occasions, 
 been suspended, whereby persons apprehended 
 upon suspicion have suffered a long imprisonment, 
 sometimes from design and sometimes because 
 they were forgotten, the right to suspend it is 
 expressly confined to cases of rebellion or inva¬ 
 sion, where the public safety may require it. A 
 very just and wholesome restraint, which cuts 
 down at a blow a fruitful means of oppression, 
 capable of being abused in bad times to the worst 
 of purposes. Hitherto, no suspension of the writ 
 has ever been authorized by Congress since the 
 I establishment of the Constitution. It would seem, 
 as the power is given to Congress to suspend the 
 writ of habeas corpus in the cases of rebellion or 
 invasion, that the right to judge whether the exi- 
 ! gency had arisen, must exclusively belong to that 
 body.”—[3 Story’s Com. on the Constitution, sec¬ 
 tion 1836.] 
 
 And Chief Justice Marshall, in delivering the 
 opinion of the Supreme Court in the case of ex 
 parte Bollman and Swartwout, uses this decisive 
 language in 4 Cranch, 95 : 
 
 “ It may be worthy of remark that this act 
 (speaking of the one under which I am proceed¬ 
 ing) was passed by the first Congress of the United 
 States, sitting under a Constitution which had 
 declared ‘ that the privilege of the writ of habeas 
 corpus should not be suspended unless when in cases 
 of rebellion or invasion the public safety might 
 require it.' Acting under the immediate influence 
 of this injunction, they must have felt, with pecu¬ 
 liar force, the obligation of providing efficient 
 means by which this great constitutional privilege 
 should receive life and activity; for if the means 
 be not in existence, the privilege itself would be 
 I lost, although no law for its suspension should be 
 enacted. Under the impression of this obligation, 
 they gave to all the Courts the power of awarding 
 writs of habeas corpus." And again, in page 101 : 
 
 “ If at any time the public safety should require 
 the suspension of the powers vested by this act in 
 the Courts of the United States, it is for the Legis¬ 
 lature to say so. The question depends upon 
 political considerations, on which the Legislature 
 is to decide. Until the legislative will be ex¬ 
 pressed, this court can only see its duty and obey 
 the laws.” 
 
 I can add nothing to these clear and emphatic 
 words of my great predecessor. 
 
 In the course of his elaborate and well consid¬ 
 ered opinion, Mr. Chief Justice Taney states his 
 views at length, and I shall make several extracts 
 from other parts of his opinion, to show the man- 
 i ner in which the question came before him, the 
 conclusions to which he arrived, and a portion of 
 the argument by which his views are sustained. 
 
11 
 
 He says: “ The case, then, is simply this. A mil¬ 
 itary officer, residing in Pennsylvania, issues an 
 order to arrest a citizen of Maryland upon vague 
 and indefinite charges, without any proof, so far 
 as appears. Under this order his house is entered 
 in the night; he is seized as a prisoner, and con¬ 
 veyed to Fort McHenry, and there kept in close 
 confinement. And when a habeas corpus i3 served 
 on the commanding officer, requiring him to pro¬ 
 duce the prisoner before a Justice of the Supreme 
 Court, in order that he may examine into the 
 legality of the imprisonment, the answer of the 
 officer is that he is authorized by the President to 
 suspend the writ of habeas corpus at his discretion, 
 and, in the exercise of that discretion, suspends it 
 in this case, and on that ground refuses obedience 
 to the writ. 
 
 “ As the case comes before me, therefore, I under¬ 
 stand that the President not only claims the right 
 to suspend the writ of habeas corpus himself, at his 
 discretion, but to delegate that discretionary power 
 to a military officer, and to leave it to him to 
 determine whether he will or will not obey judicial 
 process that may be served upon him. 
 
 “No official notice has been given to the courts 
 of justice, or to the public, by proclamation or 
 otherwise, that the President claimed this power, 
 and had exercised it in the manner stated in the 
 return. And I certainly listened to it with some 
 surprise, for I had supposed it to be one of those 
 points of constitutional law upon which there was 
 no difference of opinion, and that it was admitted 
 on all hands that the privilege of the writ could 
 not be suspended except by act of Congress. 
 
 “ When the conspiracy of which Aaron Burr 
 was the head, became so formidable, and was so 
 extensively ramified as to justify, in Mr. Jefferson’s 
 opinion, the suspension of the writ, he claimed, on 
 his part, no power to suspend it, but communicated 
 his opinion to Congress, with all the proofs in his 
 possession, in order that Congress might exercise 
 its discretion upon the subject, and determine 
 whether the public safety required it. And in the 
 debate which took place upon the subject, no one 
 suggested that Mr. Jefferson might exercise the 
 power himself, if, in his opinion, the public safety 
 demanded it. 
 
 “ Having therefore regarded the question as too 
 plain and too well settled to be open to dispute, if 
 the commanding officer had stated that, upon his 
 own responsibility and in the exercise of his own 
 discretion, he refused obedience to the writ, I 
 should have contented myself with referring to 
 the clause in the Constitution, and to the construc¬ 
 tion it received from every jurist and statesman of 
 tnat day, when the case of Burr was before them. 
 But being thus officially notified that the privilege 
 of the writ has been suspended under the orders 
 and by the authority of the President, and, believ¬ 
 ing as I do, that the President has exercised a 
 power which he does not possess under the Consti¬ 
 tution, a proper respect for the high office he fills 
 requires me to state plainly and fully the grounds 
 of my opinion, in order to show that i have not 
 ventured to question the legality of his act without 
 a careful and deliberate examination of the whole 
 subject. 
 
 “ The clause in the Constitution which authorizes 
 the suspension of the privilege of the writ of habeas 
 corpus , is in the ninth section of the first article. 
 
 “ This article is devoted to the legislative depart¬ 
 ment of the United States, and has not the slight¬ 
 est reference to the executive department. It 
 begins by providing ‘that all legislative powers 
 therein granted shall be vested in a Congress of 
 the United States, which shall consist of a Senate 
 and a House of Representatives.’ And after pre¬ 
 scribing the manner in which these two branches 
 of the legislative department shall be chosen, it 
 proceeds to enumerate specifically the legislative 
 powers which it thereby grants, and legislative 
 powers which it expressly prohibits, and at the 
 conclusion of this specification a clause is inserted 
 giving Congress the power ‘ to make all laws which 
 shall be necessary and proper for carrying into 
 execution the foregoing powers, and all other 
 powers vested by this Constitution in the Govern¬ 
 ment of the United States, or in any department 
 or office thereof.’ 
 
 “ The power of legislation granted by this latter 
 clause is by its words carefully confined to the 
 specific objects before enumerated. But as this 
 limitation was unavoidably somewhat indefinite, it 
 was deemed necessary to guard more effectually 
 certain great cardinal principles essential to the 
 liberty of the citizen, and to the rights and equal¬ 
 ity of the States, by denying to Congress, in express 
 terms, any power of legislating over them. It was 
 apprehended, it seems, that such legislation might 
 be attempted under the pretext that it was neces¬ 
 sary and proper to carry into execution the powers 
 granted, and it was determined that there should 
 be no room to doubt, where rights of such vital 
 importance were concerned, and, accordingly, this 
 clause was immediately followed by an enumeration 
 of certain subjects to which the powers of legisla¬ 
 tion shall not extend; and the great importance 
 which the framers of the Constitution attached to 
 the privilege of the writ of habeas corpus to protect 
 the liberty of the citizen, is proved by the fact 
 that its suspension, except in cases of invasion and 
 rebellion, is first in the list of prohibited powers ; 
 and even in these cases, the power is denied, and 
 its exercise prohibited, unless the public safety 
 may require it. It is true that in the cases men¬ 
 tioned Congress is, of necessity, the judge of 
 whether the public safety does or does not require 
 it, and its judgment is conclusive. But the intro¬ 
 duction of these words is a standing admonition 
 to the legislative body of the danger of suspending 
 it, and of the extreme caution they should exercise 
 before they give the Government of the United 
 States such power over the liberty of a citizen. 
 
 “It is the second article of the Constitution that 
 provides for the organization of the Executive de¬ 
 partment, and enumerates the powers conferred on 
 it, and prescribes its duties. And if the high 
 power over the liberty of the citizen now claimed 
 was intended to be conferred on the President, it 
 would undoubtedly be found in plain words in this 
 article. But there is not a word in it that can fur- 
 nish the slightest ground to justify the exercise of 
 the power. 
 
12 
 
 “ The article begins by declaring that the Execu¬ 
 tive power shall be vested in a President of the 
 United States of America, to hold his office during 
 the term of four years ; and then proceeds to 
 prescribe the mode of election, and to specify in 
 precise and plain words the powers delegated 
 to him, and the duties imposed upon him. * * 
 
 ***** He is not empowered to ar¬ 
 rest any one charged with an offense against the 
 United States, and whom he may, from the evi¬ 
 dence before him, believe to be guilty, nor can he 
 authorize any officer, civil or military, to exercise 
 this power, for the fifth article of the amendments 
 to the Constitution expressly provides that no per¬ 
 son shall be deprived of life, liberty, or property, 
 without due process of law—that is, judicial pro¬ 
 cess. And even if the privilege of the writ of 
 habeas corpus was suspended by act of Congress, 
 and a party not subject to the rules and articles of 
 war was afterwards arrested and imprisoned by 
 regular judicial process, he could not be detained 
 in prison or brought to trial before a military tri¬ 
 bunal, for the article in the amendments to the 
 Constitution, immediately following the one re¬ 
 ferred to, that is, the sixth article, provides that, 
 in all criminal prosecutions, the accused shall en¬ 
 joy the right to a speedy and public trial by an im¬ 
 partial jury of the State and District wherein the 
 crime shall have been committed, which district 
 shall have been previously ascertained by law, and 
 to be informed of the nature and cause of the ac¬ 
 cusation ; to be confronted with the witnesses 
 against him ; to have compulsory process for ob¬ 
 taining witnesses in his favor, and to have the as¬ 
 sistance of counsel for his defense. 
 
 “And the only power, therefore, which the Pres¬ 
 ident possesses, where the‘life, liberty or prop¬ 
 erty ’ of a private citizen is concerned, is the 
 power and duty prescribed in the third section of 
 the second article, which requires ‘ that he shall 
 take care that the laws be faithfully executed.’ 
 * * * With such provisions in the Constitu¬ 
 
 tion, expressed in language too clear to be misun¬ 
 derstood by any one, I can see no ground whatever 
 for supposing that the President, in any emergen¬ 
 cy, or in any state of things, can authorize the 
 suspension of the privilege of the writ of habeas 
 corpus , or arrest a citizen except in aid of the 
 judicial power. He certainly does not faithfully 
 execute the laws, if he takes upon himself legisla¬ 
 tive power, by suspending the writ of habeas cor¬ 
 pus, and the judicial power also, by arresting and 
 imprisoning a person without due process of law. 
 Nor can any a'rgument be drawn from the nature 
 of sovereignty, or the necessities of government, 
 for self-defense, in times of tumult and danger. 
 The Government of the United States is one of 
 delegated and limited powers. It derives its exist¬ 
 ence and authority altogether from the Constitu¬ 
 tion, and neither of its branches, Executive, Leg¬ 
 islative, or Judicial, can exercise any of the pow¬ 
 ers of Government beyond those specified and 
 granted; for the tenth article of the amendment 
 to the Constitution, in express terms, provides that 
 ‘ the powers not delegated to the United States by 
 the Constitution, nor prohibited by it to the States, 
 
 are reserved to the States respectively or to the 
 people.’ 
 
 * * * * “ While the value set upon this writ 
 of habeas corpus in England has been so great that 
 the removal of the abuses which embarrassed its 
 enjoyment has been looked upon as almost a new 
 grant of liberty to the subject, it is not to be won¬ 
 dered at that the continuance of the writ thus 
 made effective should have been the object of the 
 most jealous care. Accordingly, no pow r er in Eng¬ 
 land short of that of Parliament can suspend or 
 authorize the suspension of the writ of habeas cor¬ 
 pus. I quote again from Blackstone [1 Com., 
 136.] : ‘ But the happiness of our Constitution is, 
 that it is not left to the executive power to deter¬ 
 mine when the danger of the State is so great as 
 to render this measure expedient. It is the Par¬ 
 liament only, or legislative power, that, whenever 
 it sees proper, can authorize the Crown to suspend 
 the habeas corpus for a short and limited time, to 
 imprison suspected persons without giving any 
 reason for so doing.’ And if the President of the 
 United States may suspend the writ, then the Con¬ 
 stitution of the United States has conferred upon 
 him more regal and absolute power over the lib¬ 
 erty of the citizen than the people of England have 
 thought it safe to entrust to the Crown—a power 
 which the Queen of England cannot exercise at 
 this day, and which could not have been lawfully 
 exercised by the sovereign, even in the reign of 
 Charles the First;.” 
 
 The Chief Justice, in his opinion in the case of 
 Merryroan, referred to the action of Congress at 
 the time of Burr’s conspiracy, in 1807, and to the 
 fact that it was not then claimed that the Presi¬ 
 dent had power to suspend the privilege of the 
 habeas corpus. There appears to have been no re¬ 
 port of the debate in the Senate on the bill there 
 introduced, in consequence of a special message 
 from President Jefferson (as it was considered in 
 secret session), but in the House the bill was open¬ 
 ly and ably discussed by several members; and, 
 though the bill only proposed to suspend the priv¬ 
 ilege “for three months, and no longer,” in “all 
 cases where any person or persons charged on oath 
 -with treason, misprision of treason, or other high 
 crime or misdemeanor, endangering the peace, 
 safety, or neutrality of the United States, have 
 been or shall be arrested and imprisoned by virtue 
 of any warrant or authority of the President of 
 the United States, or from the chief executive 
 magistrate of any State or Territorial government, 
 or of any person acting under the direction or au¬ 
 thority of the President of the United States,” the 
 House, by a vote of 113 to 19, rejected the bili, 
 on the unusual motion “that the bill be rejected,” 
 which is considered a motion of indignity, indica¬ 
 ting that the bill is not worthy of deliberate dis¬ 
 cussion and consideration in the usual form. [Hurd 
 on Habeas Corpus , 135.] 
 
 In the case of Johnson vs. Duncan, &c. [3 Mar¬ 
 tin’s, La. Rep. 531], this question was brought 
 under consideration; and, though Chief Justice 
 Mariin referred to the decision of the Supreme 
 Court, in the case cited by Chief Justice Taney, as 
 conclusive authority, he nevertheless proceeded to 
 
13 
 
 examine the question as though it had not been 
 authoritatively decided. The whole opinion is re¬ 
 markable for its vigor and clearness, and will well 
 repay the most careful examination ; and I shall ex¬ 
 tract a portion of it which directly relates to the 
 question now under consideration. After refer¬ 
 ring to the argument that all the function of the 
 civil magistrate had been suspended by a procla¬ 
 mation of martial law, by the officer commanding 
 the military district, the Chief Justice proceeded 
 as follows : “ This bold and novel assertion is said 
 to be supported by the ninth section of the first 
 article of the Constitution of the United States, in 
 which are detailed the limitations of the power of 
 the Legislature of the Union. It is there provided 
 ‘ that the privilege of the writ of habeas corpus shall 
 not be suspended , unless, when in cases of invasion or 
 rebellion , the public safety may require it? We are 
 told that the commander of the military district is 
 the person to suspend the writ, and is to do so 
 whenever, in his judgment , the public safety ap¬ 
 pears to require it; that, as he may thus paralyze 
 the arm of the justice of his country in the most 
 important case, the protection of the personal 
 liberty of the citizen, it follows that as he who can do 
 the more can do the less , he can also suspend all 
 other functions of the civil magistrate, which he 
 does by his proclamation of martial law.” 
 
 This mode of reasoning varies toto coelo from 
 the decision of the Supreme Court of the United 
 States, in the case of Swartwout and Bollman, ar¬ 
 rested in this city, in 1806, by General Wilkinson. 
 The Court there declared that the Constitution 
 had exclusively vested in Congress the right of 
 suspending the privilege of the writ of habeas cor- 
 pits, and that body was the sole judge of the ne¬ 
 cessity that called for the suspension. “ If, at any 
 time,” said the Chief Justice, “the public safety 
 shall require the suspension of the powers vested 
 in the Courts of the United States by this act (the 
 habeas corpus act), it is for the Legislature to say 
 so. This question depends on political considera¬ 
 tions, on which the Legislature is to decide. Till 
 the Legislative will be expressed, this Court can 
 only see its duties, and must obey the law.” [4th 
 Cranch, 101.] 
 
 The high authority of this decision seems, how¬ 
 ever, to be disregarded, and a contrary opinion is 
 said to have been lately acted upon, to the distress 
 and terror of the good people of this State; it is 
 therefore meet to dispel the clouds which designing 
 men endeavor to cast on this article of the Consti¬ 
 tution, that the people should know that their 
 rights, thus defined, are neither doubtful nor inse¬ 
 cure, but supported on the clearest principles of 
 our laws. 
 
 Approaching, therefore, the question as if I were 
 without the above conclusive authority, I find it 
 provided by the Constitution of this State that no 
 power of suspending the laws of this State shall 
 be exercised unless by the Legislature, or under its 
 authority. The proclamation of martial law, there¬ 
 fore, if intended to suspend the funettons of the 
 Courts, or its members, is an attempt to exercise 
 powers thu3 exclusively vested in the Legislature 
 —I therefore cannot hesitate in saying that it is in | 
 
 this respect null and void. If, however, there be 
 aught in the Constitution or laws of the United 
 States that really authorizes the commanding offi¬ 
 cer of a military district to suspend the laws of 
 this State, as that Constitution and these laws are 
 paramount to those of the State, they must regu¬ 
 late the decision of this Court. 
 
 This leads me to the examination of the power 
 of suspending the writ of habeas corpus and that 
 which it is said to include, of proclaiming martia 
 law , as noticed in the Constitution of the United 
 States. As in the whole article cited, no mention 
 is made of the power of any other branch of 
 Government but the Legislative, it cannot be said 
 that any of the limitations which it contains ex¬ 
 tend to any of the other branches, lniquum est 
 perimi de pacio , id de quo cogitaium non est. If, 
 therefore, this suspending power exist in the Exe¬ 
 cutive (under whose authority it has been endea¬ 
 vored to exercise it), it exists without any limita¬ 
 tion ; then the President possesses without a 
 limitation a power which the Legislature cannot 
 exercise without a limitation. Thus he possesses 
 a greater power alone than the House of Repre¬ 
 sentatives, the Senate, and himself jointly. 
 
 Again, the power of repealing a law, and that of 
 suspending it (which is a partial repeal), are legis¬ 
 lative powers. For eodem modo quo quid oonstilui- 
 tur , eodem modo desiruitur. As every legislative 
 power that may be exercised under the Constitu¬ 
 tion of the United States is exclusively vested in 
 Congress, all others are retained by the people of 
 the several States. 
 
 In England, at the time of the invasion of the 
 Pretender, assisted by the forces of hostile nations, 
 the habsas corpus act was suspended; but the 
 executive did not thus of itself stretch its own au¬ 
 thority ; the precaution was deliberated upon and 
 taken by the representatives of the people. [De 
 Lolme, 409.] And there the power is safely lodged 
 without the danger of its being abused. Parlia¬ 
 ment may repeal the law on which the safety of 
 the people depends; but it is not their own 
 caprices and arbitrary humors, but the caprices 
 and arbitrary humors of other men which they 
 will have gratified when they shall thus have over¬ 
 thrown the columns of public liberty. [Id. 275.] 
 
 If it be said that the laws of war, being the 
 laws of the United States, authorize the proclama¬ 
 tion of martial law, I answer that in peace or in 
 war no law can be enacted but by the legislative 
 power. In England, from whence the American 
 jurist derives his principles in this respect, “mar¬ 
 tial law cannot be used without the authority of 
 Parliament.” [5 Comyns, 229.] The authority of 
 the monarch himself is insufficient. In the case 
 of Grant vs. Sir. C. Gould, 2d. Hen. Bl., 69, which 
 was on a prohibition applied for in the Court of 
 Common Pleas, to the defendant as judge advocate 
 of a court martial to prevent the execution of the 
 sentence of that military tribunal, the counsel who 
 rssisted the motion, said it was not to be disputed 
 that martial law can only be exercised in England, 
 so far as it is authorized by the mutiny act and the 
 articles of war, all which are established by 
 Parliament, or its authority, and the court declared 
 
14 
 
 it totally inaccurate to state any other martial law, 
 as having any place whatever within the realm of 
 England. 
 
 In the same case Mr. Justice Derbigny, in deliv¬ 
 ering his opinion, said : “ To have a correct idea 
 of martial law in a free country, examples must 
 not be sought in the arbitrary conduct of absolute 
 governments. The monarch who unites in his 
 hands all the powers, may delegate to his generals 
 an authority unbounded as his own. But in a 
 republic where the Constitution has fixed the extent 
 and limits of every branch of government in time 
 of war, as well as of peace, there can exist nothing 
 vague, uncertain, or arbitrary, in the exercise of 
 any authority.” 
 
 The Constitution of the United States, in which 
 everything necessary to the general and individual 
 security has been foreseen, does not provide, that 
 in times of public danger, the executive power 
 shall reign to the exclusion of all others. It does I 
 not trust into the hands of a dictator the reins of 
 the government. The framers of that charter were 
 too well aware of the hazards to which they 
 would have exposed the fate of the Republic 
 by such a provision, and had they done it, the 
 States would have rejected a Constitution stained 
 with a clause so threatening to their liberties. In 
 the meantime, conscious of the necessity of remov¬ 
 ing all impediments to the exercise of the Execu¬ 
 tive power in cases of rebellion or invasion, they have 
 permitted Congress to suspend the privilege of the 
 writ of habeas corpus in those circumstances, if the 
 public safety should require it. Thus far, and no 
 further goes the Constitution. Congress has not 
 hitherto thought it necessary to authorize that 
 suspension. Should the case ever happen, it is to 
 be supposed it would be accompanied with such 
 restrictions as would prevent any wanton abuse of 
 power. “In England (says the author of a justly 
 celebrated work on the Constitution of that coun¬ 
 try), at the time of the invasion of the Pretender, 
 assisted by the forces of hostile nations, the habeas 
 corpus act was indeed suspended; but the execu¬ 
 tive power did not thus of itself stretch its own 
 authority; the precaution was deliberated upon 
 and taken by the representatives of the people; 
 and the detaining of individuals in consequence of 
 the suspension of the act was limited to a fixed 
 time. Notwithstanding the just fears of internal 
 and hidden enemies, which the circumstances of 
 the times might raise, the deviation from the former 
 course of the law was carried no further than the 
 single point we have mentioned. Persons detained 
 by order of the government, were to be dealt with 
 in the same manner as those arrested at the suit 
 of private individuals; the proceedings against 
 them were to be carried on no otherwise than in a 
 public place ; they were to be tried by their peers 
 and have all the usual legal means of defense al¬ 
 lowed them, such as calling of witnesses, peremp¬ 
 tory challenges of jurors, &c.; and can it be as¬ 
 serted that while British subjects are thus secured 
 against oppression in the worst of times, American 
 citizens are left at the mercy of the will of an in¬ 
 dividual, who may, in certain cases, the necessity of 
 which is to be judged of by himself assume a su¬ 
 
 preme, overbearing, unbounded power! The idea 
 is not only repugnant to the principles of a free 
 government, but subversive of the very founda¬ 
 tions of our own. 
 
 “ Under the Constitution and Laws of the United 
 States, the President has a right to call, or cause 
 to be called into the service of the United States, 
 even the whole militia of any part of the Union, 
 in case of invasion. This power exercised by his 
 delegate, has placed all the citizens subject to 
 military duty under military authority and military 
 law. That I conceive to be the extent of the 
 martial law , beyond which all is usurpation of 
 power. In that state of things the course of 
 judicial proceedings is certainly much shackled, 
 but the judicial authority exists, and ought to be 
 exercised whenever it is practicable. Even where 
 circumstances have made it necessary to suspend 
 the privilege of the habeas corpus , and such sus¬ 
 pension has been pronounced by the competent 
 authority, there is no reason why the administra¬ 
 tion of justice, generally, should be stopped. For, 
 because the citizens are deprived temporarily of 
 the protection of the tribunals as to the safety of 
 their persons, it does by no means follow that they 
 cannot have recourse to them in all other cases. 
 
 “ The proclamation of the martial law , therefore, 
 cannot have had any other effect than that of plac¬ 
 ing under military authority, all the citizens sub¬ 
 ject to military service. It is in that sense alone 
 that this vague expression of martial law ought to 
 be understood among us. To give it any larger 
 extent would be trampling upon the Constitution 
 and laws of our country.” 
 
 That the doctrines of these decisions in regard 
 to the exercise of the power of suspending the 
 privilege of the habeas corpus , have been almost 
 universally considered as incontrovertible, is fully 
 established, by reference to the works of many 
 elementary writers, and by the fact that no evi¬ 
 dence of the dissent of other jurists or of the pro¬ 
 fession has been recorded. Hurd, in his work on 
 Habeas Corpus , in reference to the constitutional 
 provision before referred to, says : “ Rebellion and 
 invasion are eminently matters of national con¬ 
 cern ; and charged as Congress is, with the duty 
 of preserving the United States from both these 
 evils, it is fit that it should possess the power to 
 make effectual such measures as it may deem ex¬ 
 pedient to adopt for their suppression.” p. 133. 
 And [p. 134], “ This power has never been exer¬ 
 cised by Congress.” And again [p. 149], “ The 
 provision (of the Constitution) relating to the writ 
 of habeas corpus , limits the legislative power.” 
 
 Smith, in his Commentaries, also considers this 
 provision of the Constitution under the head 
 of “ Constitutional restriction upon legislative 
 power.” Smith’s Corns., chap. 8, sec. 229; and 
 Curtis in his History of the Constitution, also re¬ 
 fers to it as one of the restrictions upon the 
 powers of Congress. 2 Curtis Hist. Con., p. 359. 
 
 In Sheppard’s Constitutional Text-book, at page 
 142, this is given as a restriction upon the power 
 of Congress. And in the conclusion of the article, 
 habeas corpus, in Appleton’s New Cyclopedia it 
 is said, “ It has been solemnly decided that the 
 
15 
 
 habeas corpus act can be suspended only by the 
 Legislature, and that the proclamation of martial 
 law, by a military officer, is not sufficient.” 
 
 The article on martial law in the same work 
 contains the following: “ The Constitution, by im¬ 
 plication at least, also permits its proclamation, by 
 that clause which provides that the privileges of 
 the writ of habeas corpus shall not be suspended,” 
 &c. “The right to judge whether the exigency 
 has arisen belongs, it seems, exclusively to Con¬ 
 gress. So in England, martial law and its incident, 
 the suspension of the writ of habeas corpus , requir¬ 
 ed the authority of Parliamentary acts to give them 
 a constitutional existence.” 
 
 When the question of the adoption of the Fede¬ 
 ral Constitution was under consideration in the 
 Massachusetts Convention, the constitutional re¬ 
 striction upon the power of suspending the privi¬ 
 lege of the habeas corpus was discussed by Judges 
 Dana and Sumner, in the presence doubtless of 
 Nathaniel Gorham and Rufus King, members of 
 that Convention as well as of the one that framed 
 the Constitution of the United States, and both 
 judges evidently regarded it as certain that Con¬ 
 gress only could suspend the privilege.—2 Elliott’s 
 Debates, 108 and 109. Hurd on Habeas Corpus, 
 126 aDd 127. 
 
 And during Shay’s rebellion it was the Legisla¬ 
 ture of Massachusetts, and not her Governor, that 
 suspended the privilege of this writ.—Hurd, on 
 Habeas Corpus, 136. 
 
 Against these authorities, and the general senti¬ 
 ment of elementary writers, there stands opposed 
 the practice of the War Department, first inaugu¬ 
 rated in a period of great excitement and alarm, 
 and the official opinion of the learned and venera¬ 
 ble gentleman who now holds the office of Attor¬ 
 ney-General of the United States. For that gen¬ 
 tleman I entertain the highest respect. His purity 
 of motive and character, his great legal acquire¬ 
 ments and his undoubted patriotism aDd ability 
 are unquestioned ; but, even in these respects, that 
 excellent gentleman would not wish his friends to 
 claim more than that he was the equal of the 
 learned Chief Justice of the United States. Plac¬ 
 ing their opinions upon the same footing, they 
 would only neutralize each other, and then the de¬ 
 liberate opinions of Marshal, and Story, and Martin, 
 and of the other Justices of the Supreme Court, 
 who concurred in the opinion of their Chief, in the 
 case of Bollman and Swartwout [4th Cranch, 76], 
 supported, as they are, in my judgment, by unan¬ 
 swerable argument, are decisive of the question, 
 and constrain me to decide that the President, 
 without the authority of Congress, has no consti¬ 
 tutional power to suspend the privilege of the writ 
 of habeas corpus in the United States. The prison¬ 
 er is therefore in any view which I have been able 
 to take of this case, entitled to the benefits of the 
 writ of habeas corpus , and to be discharged unless 
 some reason for detaining him, beyond that set out 
 in his petition, is shown. But other reasons be¬ 
 sides those set forth in his petition, or in any war¬ 
 rant or order of commitment under which he may 
 
 be now held, may be shown. Tne District Attor¬ 
 ney of the United States will have notice of the 
 allowance of the habeas corpus , and if, on its re¬ 
 turn, or at any time, he, or the Marshal of the 
 United States, or his deputy, or any other citizen, 
 can show that the petitioner has been guilty of any 
 offense against the laws of the United States, or 
 has in any way subjected himself to legal arrest 
 and imprisonment, it will be my duty (a duty 
 which I certainly shall not hesitate to perform), to 
 commit him to prison by a proper and sufficient 
 order or warrant. 
 
 I have thus hastily, though with some labor, 
 written out an opinion in this matter, though the 
 application for a habeas coapus was ex parte ; and 
 was decided without the benefit of an argument, 
 for or against the application. I have done so be¬ 
 cause the duty of deciding upon the application 
 was a delicate and responsible, as well as an im¬ 
 perative one; and being compelled to decide a 
 question of such importance, under such circum¬ 
 stances, it was but respectful to those high of¬ 
 ficials, whose legal opinions, opposed to mine, have 
 led to the arrest of the petitioner and the denial of 
 the privilege of the writ of habeas corpus , that I 
 should state, at some length, the reasons for my 
 conclusions and the authority on which I relied. I 
 have preferred, however, even in expressing my 
 own decided opinions, to adopt the deliberate and 
 eloquent language of departed jurists, of world¬ 
 wide reputation :—(language used by them in de¬ 
 ciding cases which had been fully argued, and 
 used, too, after they had had the benefit of a full 
 consultation with their learned associates on the 
 bench)—rather than the less forcible and less au¬ 
 thoritative language in which I might have ex¬ 
 pressed my own opinions. The decisions referred 
 to have been before the profession and the country 
 for more than forty years, and, so far as I know, 
 they had not, until a very recent period, been 
 questioned, or their doctrines assailed by any re¬ 
 spectable jurist. I cannot but endeavor to follow, 
 though with feeble and unsteady steps, in the 
 paths of constitutional duty clearly and distinctly 
 marked with the ineffaceable footprints of Mar¬ 
 shall, of Story, of Washington, of Livingston, of 
 Martin, and of Taney ; and guided by the serene 
 and steady light of their recorded opinions, I may 
 certainly hope not to go far astray. 
 
 I have endorsed the proper allowance upon the 
 petition presented, and upon the writ prepared by 
 the Clerk. 
 
 The writ of habeas corpus having been awarded 
 in pursuance of the views expressed in the fore¬ 
 going opinion, and the prisoner having been 
 brought before the Judge upon the return of the 
 habeas corpus, was discharged by him on the 
 ground that no sufficient cause was shown for his 
 detention; but he was immediately re-arrested 
 under orders from the War Department, taken to 
 Washington, and there confined. 
 
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