YALE UNIVERSITY LIBRARY

U.S. District Court for the
Northern District of New York.
Opinion of Judge N.K.Hall. . .in the
case of Rev.Judson D.Benedict.

Buffalo, 1863.

YALE
UNIVERSITY LIBRARY

r i;-^ . OPINION

JUDGE N. K. HALL

? : UNITED STATES DISTRICT COURT FOR THE NORTHERN
DISTRICT OF IvTEW YORK,

HABEAS COEPIJS

IN THE CASE OF
vsi REV, JUDSON D. BENEDICT,
AND
DOCUMENTS AND STATEMENT OF FACTS RELATING THERETO. WITH XuTES
AND ADDITIONAL AUTHORITIES; WITH
AN APPENDIX,
CONTAINING A COLLECTION OF AUTHORITIES AND MANY USEFUL
SUGGESTIONS UPON THE SUBJECT OF MARTIAL LAW, AND
THE EXERCISE OF ARBITRARY POWER.

BXJFin^^IjO:

JOSEPH WAEEEN ,& CO., PEINTEES, COUEIEE OFFICE, ITS WASHINGTON STREET.
& 1863. P
^  -  ^^

OPINION

or

JUDGE N. K. HALL.

OF THE

UNITED STATES DISTRICT COURT FOR THE NTORTHERN
DISTRICT OF NEW YORK

ON

HABEAS COEPIJS

IN THE CASK OF

REV. JUDSON D, BENEDICT;

AND

DOCUMENTS AND STATEMENT OF FACTS RELATING THERETO. WITH NOTES
AND ADDITIONAL AUTHORITIES ; WITH
AN APPENDIX,
CONTAINING A OOLLEOTION OF AUTHORITIES AND MANY USEFUL
SUGGESTIONS UPON THE SUBJECT OF MARTIAL LAW, AND THB
THE EXERCISE OF ARBITRARY POWER.

BTJIT'Tr^r.O:
;rOSEPH VAIfllBN & CO,, PINTERS, COURIER OFFICE, 17^ W,\SI^NGTON STRKE|,
;i863.

INTRODUCTION.

The following opinion, upon the .application of Rev. Judson D. Benedict, for a Writ of Habtat
Corput, was firet published in the Buffalo Commerciat Advertiser of this city, on the 24th day
of September, 1B62. It was published in the Buffalo Courier, the next moniing; and in the af
ternoon, in the Courier and Jiepublic, It was also published in the weekly papers issued from the'
same offices: and, afterwards, in The Wokld and Morning Coueikr and New Yokk iNQuniKE.
The counsel and friends of Mr. Benedict desiring to give it a still wider circulation, an edition
of 10,000 copies of the opinion, and of a statement of the facts of the case, prepared by A. Sawin
Eeq., .the counsel for Mr. Benedict, was published in pamphlet form, at Buffalo.
Subsequently an edition of 8000 copies of the opinion was published in New York City. In
that edition the opinion was preceded by an introductory statement, signed by mapy of the
leading members of the bar of that city; which statement is now re- printed on the, opposite page.
These editions having been exhausted, and further copies of the opinion having been called
for, it is now re-printed, with useful notes by the judge who delivered the opinion, assisted by
gentlemen of the bar.
A copy of the opinion of JuDoit Hall on the motion to commit the U. S. Marshal for a con
tempt, in disobeying the Writ of Habeas t/orpwe, issued upon the re-awest of Mr. Benedict im
mediately after his discharge under the firat writ, is also annexed : together with a statement of
the facts connected with such second arrest, as furnished by the reporter of the Omuier.
In the ApPKKDix, following the first opinion, will be found (besides other notes) a note containing
extended quotations from many ot the most accurate and reliable military and legal writera, and
other distinguished peisons, who have discussed the subject of martial law ; and also a few sug
gestions in regard to the term Martial Law, its true signification and force, and the exei-cise of
arbitrary power, in England and tte United States, under pretence of its authority.
There have also been added extiacts from charges to the Grand Jury, by Judges Leavitt and
Hall, and a decision of Mr. Justice Swayne, upon the law of treason: Also an extract from an
Act of Congress providing for the punishment of conspiracies to resist the laws of the United
States.

JUDGE HALL'S OPINION-

The opinion of Judge Hall, now printed, is on a topic popular in its nature, and of an inter
est personal, political and universal-
Military power, in exclusion of all existing civil process of law, is now claimed throughout the
loyal States to be exercised by Provost Marshals. To those who enforce it, their friends and sup-
poiiers, this may seem harmless or trifling ; not so to those w^ho are, or may be, its victims.
To be an'ested, for one knows not what ; to be 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, ¦w;ithout trial, presents a body of tyranny which cannot be enlarged.
To prevent ffii4 is the office of tte Writ of tiabeaa Corpus. » ¦ ' '• i
Itwouldnotseera wisdoru, in those who established our liberty, to have conferred on the Exer
cutive, who was to exercise it, the right of determining when he should jiut forth the power |C(f, ¦
suspending th(? Jaws protectipg ^he liberties of the pecjple. The uniform opinion nntU lately, lias
been that it, ^as in, Jhe power only of Congress, whose ofiice it is to make and repeal laws, to
suspend our lawful liberty. Its membersare 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 thiB' vital matter, Judge Hall's decision is clear,' forcible and convincing. The Opinion is
called forth ih theregujar coiiise 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 purciasedby hope of promotion. It is the calm judgment of a learned magistrate,. deci
ding for law,va|>d liberty. Its principles equally tquch property aqd life. No person can be
insensible to its, importance, and there is no one whom it does not concern.
As members of a profession whose highest office and gravest doty it is to protect, pi-eserve and
defend the liberty of the citizens, we ask the nnivei-sal perusal of this judgment.
JCiio rori, "Ocfaior, 1862. ,
, .'^l^EXAljIDEK HAMILTpN, Jb-, DaNIEL LOftO,
'eDWARd'h, OWEN, JAMES T. BBADV,
¦wiLtlAld BKTTS, E. W, STODGHION,
C. O'CONOR,' GREENE C. BfeONSON,
F. F. MARBCRy, ' ' ' G. R J. BOWDOIN, ' •
J. E. BHERILL, ,, 1  W. C. WETMORE,
. V, C. PRIME, , , ., ,,^ ,, , NELSON CSaSE,
' WAsfillNGTON 'Q. iiO^ilOVl, JOHN N. WHITING,
THOMAS H. RODMAN, L. S. CHATFIELD,
JEREMIAH LAROCQUE, JOSEPH LAROCQIJE.
WALTER L. LIVINGSTON, JOHN McKEON,
E. J, WILSON, A. MANN, Jk., '
BEVERLY ROBINSON, GEORGE BUCKHAM
CLAEESON N. POTTER, GILBERT DEAN '
GEORGE A. HALSEY, C. DONOHUE '
J. A STOUTENBUEGH, F. F. STALLKNECHT
RICHARD O'GOEMAN, WILLIAM 0. BARRETT
SAMUEL L. M, BARLOW, HAMILTON MORTON
0. M. SPEIR,

JUDGE HALL'S OPINION ON HABEAS CORPUS

IN THE CASE OF JUDSON D. BENEDICT.

IN THE MATTER OP >
JUDSON D. BENEDICT. <
I ¦'
Hall, District Judge. — The appHca-
tion for the writ of habeas corpus, in
this case, was made while I was eiigacred
in. other duties; and although I retained
the> petition and gave the questions pre
sented a hasty exkinination, before I allowed
the writ, I had no time to prepare an opin
ion upon the questions which then occurred
to me as necessary to be considered before
granting the petitioner's application. I
therefore simply made a note of the au
thorities examined ; and, as the case is one
of iinportance, I shall now state my opinion
upon the questions considered at the , time
the. petition for the habeas corpus was un
der copsideration ; — and shall refer to the
authorities then examined, and some oth
ers, which appear to me to require the exer
cise of the jurisdiction and authority in
voked by the petitioner.
The Act of Congress of Sept. 24, 1789,
(the Judiciary Act,) declares that "either
of the Justices of the Supreme Court, as
well as Judges of the District Courts, shall
have powtsr to gfant writs of A«ieas corpus
for the purpose of an inquiry into the cause
of commitment: — Provided that writs of
habeas corpus shall in no case extend tp,
prisoners in.gaol, unless where they are in,
custody, under or by color of the authoiv
ity of th(e 'United States, or are committed
for trial before some court of the same, or
are necessary tp be brought into court to
testify." It appears by the petition and affidavits
annesxed, that the petitioner is confined in
gaol, and that the only cause of his deten

tion rendered by the gaoler, is a paper
delivered to him by A. G. S^yeins, Deputy
U. S. Marshal, of which the fpllowiDg is a
copy: " Marshal'^ Office, Buffalo, J
Septem]()er',2d, 18'62. J
David M. Grant will take from "Fort |Portei-,
Thomas Ctiriiinings, James Patfker, Antoine
Quanteut, N'oah B. Clarfc;' and Jai-ed Bene
dict, prisoners confined there, committed un
der orders of, the War Department, and remove
them to the Erie County Jaiilfor safe keeping,
and there detain them until further ordei-, aAd
the Sheriff or Jailor of said County will ke^
them until further order, in said JaU.
[Signed] A, G. STEVENS,,
tJ. S. Dep. Marehal."
" To Ool. E. P. Chapin, and the l^heriif, and
Jailor of Erie County."
From this it clearly appears that the pe-
titipner is in custody bycolor of ithe author
ity of the United States, either under the
ordjsrs 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
Deputy 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 sl^,
cut from a newspaper, .purporting to con
tain a copi^ of an order of the War Depart
ment, in the following words :
" War Depaetmkni,
Washington, lugust Stih, 1862.
Ordered First — That all United States Moivhals
and Superintendents, a.riA Chiefs of Police, of
any town, city, or district, be and they are
hereby authorized and directed to,.anest and

6

.ttmGE haj.l's opinion

imprison any peraon or persons wJjo may be
engaged, by act, speech, or writing, in dis
couraging volunteer enlistments, or in any
way giving aid and comfort to the enemy, or
in any other disloyal practice against the Uni
ted Slates.
SecondHj^^l' unmfediiite rsport be mad^to Ma-
(jdrtLi .^ VPitfnerf^ Adgfe Advocate, in order
that stich persons may be tried before a military
commission. *
Third — That th^ expenses. of, such arrest ajid,
imprisonment' wi/l' be certified to the Chief
Clerk of the War Departroeni, for settlement
and payment.
[Signed] EDWIN M. STANTOJST,
,,,,,.;, ,, 1 ,,,,, iSecji'^tary of War."
'The affiq^vit pf the ^ counsel also states
tfiat the Deputy Marshal, at the same time,
said, "that printed slip was his only author-
it^ for tliA ai'i'est of said Benedict."
' The petitioner states in his petition that
he ^'is not cqjf(i^itt^,(^ or detained by virtue,
of any praeess, igsued by any Court of the
United ¦'States,'>or' -any Judge thereof; or by
virtue of t^ei;fiW^lyjudgment, 6t 'decree of
any C(buft.jyQr' Jjy virtue of any,pro,ee3s,',pf
ai^,kindvOrdeserip,tion; that he hasneither
by act or speech been disloyal tP' the Con-
st\txi.tioTf:'t)^J laws of the United States) or
been guilty oi^' apy violation of any order
of '¦'the War department, ,gr^ of the Presi
dent of the United States, or been sruilty of
any offence Or act sflbjecting him toarrest;"
afid'tfehis petition i.<i verified by the bath of
thei petitioner. '''¦ - ¦ ' < • ' ¦
On the caee thilfe roade'by the petitionei-,
I ^PTild' ¦ have • granted a habeas corpus at
once,; oil thfe first reading 'of his petition
and the accompanying affidavits, had I riot
seoii a newspaper copy of an order of *the
Wdr Departmefiit; assuming to siispend, in
certain casesj the privili^eiofifbe writof
habeas carpus. >¦ im- i i
'This order behrs the :same date as that
referred ito by the ' Deputy Marfehal, and iS'
in'the followina; NvKMlds! ; || ¦
.!<;.. M • "i; I, V , . ,;;,
; f'.WA«'PKPAttT.\IKNT, ': l.(
Washington,' August 8tli, 18G2. J
Order to prevent evasion' of military duty
and for suppression 'of disloyal practices^
FirstJ^By directioTi of thi' President of the Uni
ted States, it is hereby Ordered th.it untirfui'-
thef order, no citizen liable to be drafted into
'the militia" shall be ftlWed to go to a foreign

country, and all Marshals, Deputy Marstalsi,
and military officers of the United States, are
directed and all police authorities, especially
at the poits of the United States on the sea
board and on the frontier, are requested to see
that this order is faitbftilly earned into effect.
< Ail d they 'aje hereby ahtjiorized and directed
'to arrest lafad detain jtni[r Jjferson- oA^efsorts -
about to depart from the United States, in vio
lation of this order, and report toL. C.Turner,
Judge Ajdvqcat^ at, Washington City, for fur
ther insti-uction' respecting the person or per
sons Fo arrested or detained.
Second — Any person liable to draft, who shall
absent himself from his County or State, be
fore such draft is madcj will be arre?tpd/by
any Provost Marshal or other United Sttiet m ,
. State officer, wherever he may be found within
' the jurisdiction of the United States, anA con -
I ,vey«l. to the nearest military post or. depot,
and placed on military duty for the terpi of the
draft; and the expehi?es of hiS own arrest and '
conveyance to sOch post or depot; and also the
sitm of five dollars as a remtrd to the.offieer yho
shall ma]<;e.such'arres^,fhal] be deducted from,
his pay. ¦ ¦ , . ^'^ ,
Third' — The writ of habeas corpus is hereby sus-
;f)ehded in' respect to al,l prisoners so arrested
and detained, and in re'sp^t to all persons'-
arrested for disloyal practices. .;.i; •
[Signed], EDWIN M. STANTON, .-il;
.1. I . I,, Seoiefary of War.'', ,.-!•
These tw'o orders of the War Depart
ment, bearing the same date, may pr6p«-ly'
be considered together, and as relating tP
the same general subject. Whether issued
separately or together; whether, if issued
separately, the one i-efel-red to by the Dep-'
uty 'Marshal was first issued or not, it may
not be very material to inqliire; but', as
that decUres that "All United States MaVr
shals, and SuperintJeWdents, and Chiefe of '
Police of any towii, city or district, be and
they are hereby authorized And directed to
arrest And imprisori ktiy peteon or persons
who rflay be engaged, by act, speech or
writing, in discouraging volunteer enlist- '
ni«nts, or in any yvkj giving aid and coin-
foi't to the'efaemy, or in my other disloyal'
practice against the United States," ' and
the other order assumes to suspend the writ
of habeas corpus in respect npf only to all
persons arrested and detained by virtue
thereof, but also ' ' in respect to all persons
arrested for disloyal practices," [a, tei-m not
otherwise contained iri that order,) it may
be presumed that the order referred to by

•See Note B, Appendix.

ON HABEAS COEPUS.

the Deputy Marshal was first issued, and
that the other order was intended to'sus-
pfflid (he writ 'of habeas ' corpus'Xti reSpect
to pfersons arrested under that order, Pr un
der the order referred ' to by the Deputy
Marshal. If the o'rder declaring the writ of haheai
corpus to be suspended can ' be considered
as legal and valid 'it is necessary to consider
its scope and effect, and, as both questions
are therefore properly before me, I shall
qbhsider boHi in their order.
It is to he observed that' the' order first
recited, confines the powet-' of arrest to Uni
ted State/s' Marshals, and Superintendents,
and Chiefs of Police, while the second Pr-
det, in respect to the cases withiti it, extends
the power to all Deputy Marshals arid all
rriilitary officers of the United 'Stated and
to all police authorities. These 'bfficers,
many thousands in number, arid Pf every
grade of intelligence, are 'fecktt&'ed oVer
eVery portion of our country.' To all' of
these this ' arbitrary ^ppwer of arrej^t, with
out -warrant, •without any prior legal inqui
ry, arid without' the slightest preliminary
proof of guilt', ' is assuriied to be given.*
Was it" intended, then, that eve-iy police-
maii arid every military officer throughout
tifie loyal States, and in localities far reniov-
ed from the seat bf military' operations,
shbrild be authorized' to arrest and imprison
any citizen,' and that' i^ on taking the party
into' custody; or afterwards, such officer
should declare that he made the ari-est by
Virtue of the orders' of the ' War Depart- -
rrient of August 8, 1862, or for disloyal
practices, he could keep hini in pison, or
in his own custody. Or compel hirti to enter
the fiiilitary'sefr vice, and also require all'
judicial officer^, when the prisbnei' or his
friends ajmlied for a writ of habeas corpus,
that thefarfs' of the case might be judicially
ascertained 'and the question of the legal
ity' of his arrest and- dtetetftiori considered,
to say "The pri-vilegC of the writ of haii'Ui

corpus is suspended, aifd you, can have no
reilief?" ' Is every mati'Supjjoselc} t,p be sub
ject to militia duty, who 'has left or sji'all
leave his' county since the 8th Of ArigUSf,
last, arid prior' to the' unknown daV iii. ihe
futtire when a draft is tO'be made, rii mat
ter under 'what circumstances, to 'bii pun
ished by being forced into the rniliiiiry s^f-
vfc'e for nine inorithsi without any hearing,
without' ajiy Ppp6'i'tiibit;jj^ to sho-sv th^fhe is
exempt fr6m rriilitia duty, when the Con
stitution pl-pvides that "np';|^'^riin"sh&lltbe
deprived of life, liberty or property, 'v^lh-J
Orit due process of law !" ' I anj aware that
these restraints upori travel have been re
moved, but' ¦was that the original intention
of the ord^r ' '
My personal confidence in thfe'. integril}'.^
patriotisrii and' good sense of the President,
as ivell a's'the respect due to the hi^h office
beholds, cP'rajsels me "to requite the igoSt
conclusive evidence up&n the point bdfdrs
adopting the conclusion that he has ev^'r
dehberately sanctioned so palpable a'viola- .
;tiori p,f the 'Constitutional rights 6'f the citi-'
zehs of' the loyal States as the order 'of the'
War Detoartb:ient, thuS' ' construed, 'Wohld'
justify and require.
Here, arid' throughput most of the loyal'
States, -s^e are'far removied from the several'
fields of military operations. All the arts
and occupatioBs of peace cin b'^ add are
pursued in entire seciijity, and all the l^ws
of the State and Uhidn cai^.'be' adfliiniitered ¦
by the ordinary CotirtS of justicV^s, 'freely,
as fully, and as efficiently, as'ip time of pro='
found peace. The executioi^ of the la!ws
of the land has riot been resisted by oiir
people. On the contraVy, they have. 'i-e-^
splorided tb the calls of the general Govern-
riflent with unexampled unanimjtya'h'd''alac-
rity, and have offered their blood atiH'lheii^
treasiii'd, without stint, ' to'"Aiaintain th'e
authority of Constitutional '.GcjverAnierit.— ^
They have waited for np Coii'sCrfptiori^ib'ut^
• have sent hundreds of thoris'ands of 'voliiff-
. .', '. ]:, . I . ¦ ''>¦¦'.. ¦. ''.> '¦; iiu

* The Mcond article of this order seems to extend'fhe,
pd^er of 'arbitrary' arpest, 'in the cases provided ftr in
tlyit article, tb, every officer^ civil or militaf y-r7«f what-,
ever rank, designation or authority — elected or, appointed,'
under the laws of any State. or of the United iStotes, v^xi-
is willing to become the instrument of its execution.
Whatever may be thfe ultimate decision upon the ques-
tiqn of the yowei of the President, JegaUji to sUESsend
tjje writ of ftfljiejf c»rp»«, tber« Wtt^be »« 4ouM.tbftt

nn;'!!!-:* .101 r. .; 'u .!•-. .'. I.' ..ifi-iiiM
these aprests upon mere suspioioUj withoiit.com^laiiit an
dathj^rid" without' judicial warrjm't, are cleai'violH^onff
of: tl^fe|C&nstitutipn;;-7-vioIattons lyhich ,shouI4.ti^t b^.lV^
gotten or o.verljolt'ed, in ilie, perhaps, too earliest, ijis-
clission of the questioii of Dhe FrSsident's anthoilt;([iu>
Without a previous violation of the Constitution, by these
arrests without warrant, or any legal process, the ques.-
:tion of the President's poweE'in. tli^a VQEJPQQi'i^uV^^^'*
epme sowjiMatfveJy unioijiOTtfthti i'l " ¦ 5,. .ntt»i " *. ¦¦<

.lUDGE HALL S OPINION

i^x& into the fie]|d, tp meet, without com-
plaipt, all the exposures, all thei vicissitudes
and all the dangers of tte camp and the
^aftje field. , ¦\^^it]}Out waitiqg for the tax-
g^AeVer they have voluntarily and freely
cpntrituted untold millions to hasten the
departure pf thpse volunteers and strengthen
the arjp [ of the <TOvernment established
under the Constitution of the. Union. Is
it ppssibie , that such orders as tjtibse above
f^pjiied were intended tp .operate jippn such
a ipeople, in the loyal States, and place their
^berties at tl^e merey of every military offi
cer, every officer of poUce, snd every police
man, and th^n tp suspend the writ of habeas
edrpug in such manner as to prevent a judi
cial inquiry into the question whether, the
facts' of the case would justify an arrest,
even ijnder^ncli, orders ? Can a man not
liable to do militairy duty be arrested under
such order and ho detained by force, in the
military service, without the privilege pf
showing hi^ exerqption and procuring his dis-
' charge from such ^egal restraint ? Could
it have been in^^'^ded that military officers,
of every grad^, and poUcenoen of every
class, th'rpughout the loyal States, acting
upon their own suspicions, or upon any rep
resentation which political prejudice, per
sonal malignity,, or other motives might
suggest, or in,t)ie.mere vvantonness of unu
sual and arbitrary povi^er, should be author
ized ,tp ^rrest ^nd imprison any citizen,
without the possibiUty of a judicial, investi
gation? Is, eyery p^fficial to whorn these
orders are iaddressed to determine for him
self what shall ponstitute clisloyal practices;
— « terna not inpiyn to the lg.w, which has
no fixe4 or rei^sonably certain de^nition,,
and which every arresting officer is left to
interpret as his, prejudices, his passions or,
his interest may incline?* And is such,
interpretation to ])e subject to no reyisipn,
except by ,a Judge Advocate at the seat of
6pvernment, acting upon extrajudicial, if
Doi entirdy ex parte testimony, in the ab
sence of the accused ? Such a construction
of the order would place the liberty of
ev6ry citizen at the mercy of any of these
officials, one of whom might conclude that

to spfiak disparagingly pf the military; !
and rnilitary conduct of Gienqral Meplel^n
was a disloyal practice, and t«nd'^ .to dis-
ourage, vplunteer enlistments; while andtlj-
er might consider the abuse of McCleil^n;a
virtue, an4 ^^l^ ^^^ expj;e6,sion ,pf a ,doubt
of the superlative abihty pf Fremont as a
disloyal practice of the deepest dye; and
yet anpthejr might suppose that any person
who should read aloud the newspaper
accounts of the retreat of Gen.|k>pe'8 arn^y
from the Rapid Ann; to the. Potomac and
express a doubt of the competency of th^t
General, was , discouraging enlistments and
giving aid and comfort to the enemy.
I confess, nevertheless, that there is soma
reason JFor assuming that the fair construc
tion of the language of the order of the War
Depa^rtipent, if it could properly be consid-;
ered 'without reference to the provisions of
the Constitution of the United States, would
lead us to conclude that the privil^e, .pf
the writ of habeas corpus was intended., to
be suspended in all the cases supposed..-^—
And I understand such a construction has
been sometimes insisted upon ; but when I
consider that the Constitution has imposed
restvaints upon the arbitrary exercise pf mil
itary power, (at least beyond the lines. of
military operations,) I am unwilling ^o
adopt that construction :'without strong evi
dence that such was the intention of the
orders referred to. Such a construction of
these orders, if t^eir validity can be estab
lished, -would go far towards making pur
government a despotic instead of a consti
tutional government.
, Even in the midst of our present, strug
gle, we should not forget the teachings and
history Of the past, and regard as trivial
and unimportant, constitutional prindplqi^
the persistent violation of which. has .l^d to
the dethronement of kings, anid th^. over
throw of long established forms of goyern-
iment. We should not forget the lettres4t
cachet\ of the French Monarchs, or the
illegal imprisonments under Charles the
First. In, our efforts to read aright and
profit by tl)e terrible lesson which the pres-
ent condition of our unhappy country pre-

• Se* Note r, in Abpendii,
tA "Icttiaile cachet" was^u ubitrary order' of the
kJsM pf Fniyee, in t)>e form pf a letter, afjdrepsecl y> ^

jierson in orde» to banish or imprison him An arbitrar?
wanant of imprisonment without lega", "'^

trial,

accusation |)7

ON HABBAS COKPtTS.

^

sents. we should not forget what Hume,
and Hallam, and Blackstone, and Marshall,
and Story, and Kent, have taught us.*
The langi;age of Blackstone, [1 Blackstone's
Com., 134, 135, 136,J has been often quo
ted and approved, and it states with accu
racy the laws and constitution of England,
and the practice of the French monarchy
at the time he wrote. This, with the pro
ceedings of the House of Commons upon
the celebrated Petition of Right, Shows the
importance which the sore experience of
the people of England had given to the
questions involved in the present case.' —
Blackstone says, [vol. 1, p. 134j "Next to
personal security, the law of England re
gards, asserts, and pr'eserves the pei-sonal
liberty of individuals. This personalhberty
consists in the power of locomotion, of
changing situation, or moving one's person
to whatsoever place one's own incKnation
may direct, without imprisonment or re
straint, unless by due course of law. Con
cerning which we may ' make the same

observations as upon the preceding article,
that it is -a right strictly natural; that the
laws of Eriglatid have never abridged it
without sufficient cause, and that in this
kingdom it cannot ever be abridged at the
mere discretion of the magistrate, withoht
the explicit permission of the laws, Here
again the language of the great charter is,
that no freeman shall be taken or iriipris-
oned but by thd lawful judgment of his
equals, or by the law of the land.('f') And
mariy subsequent old statutes expressly
dii'ect that no inan shall be taken or im
prisoned by suggestiin or petition to the
king or his counsel, 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 without cause shown, to which
he make answer according to law. By 16,
Car. I., c. 10. if ariy person be restrained of
his Mberty by order or decree of any illegal
court, or by comniaiid of the king's mijesty
in person, or by warrant of the council

(*) Judge Curtis in his late publication of October, 1862,
says: '^Amidst the great dangers, which encompass us, in.
OUT struggles to encounter them, in our natural eager
ness to lay hold of efficient means to accomplish our vast
labors, let us beware how we borrow weapons from the
armory of arbitrary power They cannot be wielded by
the hands ot a free people. Their blows will finally fall
upon themselves.
Distracted councils, divided strength are the very ear
liest efTects of ah attempt to use them. What lies beyond,
no patriot is now willing to attempt to look upon."
(t) The third, fourth, fifth, sixth and eighth Articles
of the Amendments to the Constitution of the United
States were Inteifded to give'our people all the guaranties
for the security of life, liberty and pr.operty which were
accorded to the English people by Magna Carta and the
PeHtion of Bight. ¦ ' ¦ ¦ . '
These articles are as follows : .
Art. 3. No soldier shall, in time of peace, be quarter
ed in any house, without consent of the owner, nor in
time of war, but in a manner to be prescribed by law-
Art. 4. TAtf right of the people to 6e secure in their per
sons, houses, papers and effects, against uiireasangble
searches artd seizures, shaZl not be violated, and no warrants
shaU issue, but upon probable cause, supported by oatji'cer
affirmaiMn, and particularly (lescribing the place to be
searched; and the persons or things to be seized.
Art. 5. No person shall beheld to answer fora capital
or otherwise infamous crime, unless on a presentment or
indictment of a grand jury, except in cases arising in tjie
land or naval forces, Ar in the militia, when' in actual
service in time of war or public danger ; nor shall any^
person be subject for the same offence 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 de
prived of life, liberty or property, without due process tif
law; nor shall-prtVate' property be taken for public use.

without just compensation. (2)

Art. 6. 'Id all criininal prosecutions, the accused shall
enjoy the>vight to a spe^dj aud public trial, ,b7 an impar
tial jury of the State and district wherein the crime shall
have been committed, which district shall hare been
previously, ascertained by law; and to be informed of the
nature and~ cause of the accusation, to be confronted with
the witnesses against him, to have compulsory process
for obtaining witnesses in his faror, and have the asaiat-
anc6 of counsel in Mr defeiice.
Art. 8. Excessive bail shall not [be required, nor ex
cessive fines imposed, nor cruel an4 unusual pimithmerUe
inflicted. And [the Constitution, Art. 1, Sisc. 9, provides: *' No
bill of att&iixdeT ox ex post facto law shall be passed."
Notwithstanding thede pr,6visionB of the Constitution— ,
which every public officer is required to take an official
oath to siipport-^hundreds of oar citizens, residents of
loyal States, have been arrested hundreds of miles from .
the fields of military operations, without warrant; without
any complaint on oath, or process of law; numbers have
been t&ken out of; their S'^te and district and. detained ,
in prison' for months, withbiit trial, or any judicial or
legal procet^dingsi.againslj.theminTaiD^wBpaper copy of,
an order, or a telegram fi;om the head of a department
or other officer has been enough to cause their arrest
and prevent an examinatipn of their case on habc<u cor
pus; all bail has been fefused; communicatlob with
friends oricounsel has, been denied j until at length»per-
h^pa after (many months of imprisonment— thpy have
bbSn discharged without irial or any judicial inqliify,
and with the acknowledgment that there was ne,Te^ th^ ;
slightest pretence that they had been guilty of any crime.
And for leaving one's' own cwinty, on lawful and neces
sary husinesB, in violation . of an arbitrary , and iUeeal
order^ it has been assumed that any person, supposeoto
be liable to military duty, is to be punished by beiiig
compelled to serve for nine months in the army; a pun
ishment' which in many cases would be grossly ctupI,
and which js not only unusttai, but was unheard of untU
g-nvented by the present liead of the War Department.

10

JUDGE H4iL B, .OPINION.

b(Wj^,|,pf of any of t^e, privy council, he
shall, npon demand pf , hi| counsel, have a
writ of habeas corpus, to i bring his body
before the court of king's bench or common
pleas, who shall determine whether the
ca^j^e of his commitpent be just, and there-
up,pn do as to justice shal} appertain^ . -A-ud
by 31, Car. II, c,, 2, commonly paJJ.ed the
hateifs^ corpus act, the methods, pf obtain
ing this writ were so plainly pointed put
and enforced, that so long as this statute
remains linimpeached, no subject 'of Eng
land Can .be.long detained in prison, except
in those cases in which tlje law requires and
justifies such detainer. And lest t^iis act
should be,^]i;ad^(i by demanding unreason
able bail, or sureties, for the prisoner's ap
pearance, it is declar^.d by 1st "^. and H.
st; .2, c, 2., that excessive bail ought not to
be required.
Of great, importance to the public isi the
ppeaeryation of this perspnal Uberty ; for, if
once, it were, left,,in ,,t,he power pf any, the
higl^eSt magistrate^ to imprison whomever
he or his officers thought proper, (as in
France it is daily practiced by the Crown),
th,ere wpnld soon be an end of all other
rights andimmunities; Some have thought
that unjust attacks, even upon life and pro
perty, 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. Tp bereaye g. man of life,
or by violence to confiscate his estate, with
out i^iccusation or trial, would be so gross and
notorious an ,act of despotism as must at
once convey the alarm of tyranny through
out the whole kijigdpni ; but confinement of
the pereon, by secretly hurrying him to
gaol, where his sufferings are unknown or
forgotten, is a less public, a less striking,
aiid therefore 'a more dangerous engine of
arhitrary governmeiit.' And yet, sometimes
when the Btate is in^danger, even this may
be a necessary measure. But the happiness
of our Constitution is that it is not left to
the executive power to determine when the
danger of the State is. so great as to render
t|(is measure expedient; for it is the parlia
ment only, or legislative power, that, wbeu"
ever it sees proper, can authorize the crown
by suspending the habeas corpus act for a
short and limited time, to imprison suspect

ed persons without giving any reason fof so
doing:; as ^^^ Senate of Kome was -fwont
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 thes,9,
commentaries we expatiated at large on the
personal Uberty 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 atro^
cious crime, and which ought not t-o be ,
abridged in any case vnthout the special
permission of law. A doctrine coeval with,
the first rudiments of the Enghsh constitu
tion, and handed down to us from our
Saxon' ancestors, notwithstanding all itheir j
struggles with the Danes, and the violence ,
of the Norman conquest ; asserted afterwards ,
and confirmed by the conqueror himself and .
his descendants and though sometimes a
little ^paired by the ferocity of the tipies,
and the occasional despotism of jealous and,
usui-ping princes, yet established on the
firmest basis by the provisions of magna
carta, tod a long succession of statutes, en
acted under Edward III. To assert an ab
solute 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 impossible; but the glory of the
English law consists in clearly defining the
times, the causes, and the extent, when,
wherefore, and to what degree, the imprison
ment of the subject may be lawful. This it
is which induces the absolute necessity^ of
expressing upon every commitment the
reason for which it is made, that the court,
upon a habeas corpus, may examine into
the validity ; and, according to the circum
stances of the case, may discharge, 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 misundei'stood,)
determined that they could not, upon a ha
beas corpus, either bail or deliver a prisoner/
though committed without any cause as
signed, iu case he was committed by the
special command of the King, or by the
Lords of the Privy Council. This drew'on

ON HABBAS COEPUS.

11

a parliamentary inquiry, and produced the
petition of right, [3 Oar. I.,] which recites
the illegal judgment and 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 pursuance of
his Majesty's special command, under a gen
eral charge of " notable contempts and stir
ring up seditiott against the King and Grov-
ernraent," the judges delayed for two terms,
(including also the long vacation,) to deliver
an opinion how far such a charge Was bail
able, "And when at length they agreed it
was, they, however, annexed a condition of
¦finding sureties for thei'r'good behavior,
which .still protracted their imprisonment,
the Chief 'Justice, Sir Nichoks 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 acquainted with
the cause of their imprisonment. But '^'*
was heard with indignation and astonish
ment by evety lawyer present; according
to Mr. SeldeH's own account of the matter,
whose resentment was not cooled at the dis
tance of four and twenty years.
These pitifal evasions gafe rise to the
stattite (1 6 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 coundl, or any of the members there
of, h© shallhave 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
Common Pleas; 'who shall thereupon, with
in three'*court days after the leturn is made,
examine and 'determine the legality of such
commitment, and do what to justice' shall
appertain, in delivering, bailing or remand
ing ^utfh prisoner. Yet, still in the case Of
Jenks, before alluded to, who, in 1676, was
committed by the King in council, for a
turbulent speech- at Guildhall, new shifts and

devices were made use of to prevent' his
enlfttgeWerit by law, the Chief Justice, (as
'well as the ChanefeUor;) declining to kward
a writ of kiebeas corpus ad subjicMidum,
in vacation, though ^t last he thought pro
per to award the' usual Writs ac? deliberan
dum, &o., Whei'Sby the prisoner Was dis
charged at the Old Bailey. Othdr 'Abuses
had also crept into daily practice, which had,
in some measure, defeated the benefit,^(^f
this great constitutional remedy. The party
imprisoning was at liberty to delay his
obedifence to the first writ, and might wait
till a second and third, called an alias and
pluries wfere issued, before he produced the
party, and many other vexatious shifti were
practiced to detain State prisoners' iti cus
tody. But whoever' will attetitively con
sider the English' histoi-y rtay observe that
the flagrant abuse of any power,' by the
Crown or its ministers, has always been pro-
dtlcti^^e of struggle, which either 'disbovers
the exercise of that power tp be contrary to
law, or if legal, restrains it' for the' future.
This Was the case iil the present instance;
the oppression of an obscure individual gave
birth to the famous habeas' corpus act (31
Car; IL. § 2,) which is frequently considered
as anothei- Mctgna Charta of the Kingdom ;
and, by consequence and analogy, has also
in subsequent times reduced the general
method of proceeding onthose 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 cotaplaint cotitained in the 3d, 4th
and 6th articles of the Petition of Right,
referred to by Mr. Justide Blackstone, and
to which the reluctant cOnsent of Charles
the 1st, was enforced by the English '^puse
of Commons, (Hume's History of England,
Chap, 51, and copy of petition in note; and'
see H'alTam, Chap. 7,) related to illegal a!r
rests and imprisonments, and ' the denial of
I'elief upon Habeas^ Corpus. (*) These
articles are as follows :

{*) Among the causes auaigned by the Declaration of
Independence, adopted in Congress, July 4th, 1776, as
justifying the colonies in casting, off their allegiance to
the British Crown, were the following complaints against
the.fixerciso of arbitrary power by the King, of Great
Britain, -viz:
^¦He has obstructed the admimittration of justice, by re
fusing hit assentto lautsfor establishing judiciotry powers,';
'•He HAS AFFEOTBD TO EBNDER THE MILITARY ISXyW^.
FEyPENT OF A.VD SUPEUIOB TO THB CiVIt VQWBR."

*fHB HAS COMBINED WITHnOTHBRS TO SCBJBOT Tia TO-
A JiUBiaDICTION FOflEIGN' TO- OUR CONBTITtTTIOW, AJTD'
UNACKNOWLEDOED BY OUB licws ; giving his ossenH'to
their ads of pretended legislat£(Ai^' #***#.* pQ^
DEPBITIjrCr na in many cases OF THE BENPFITSOF 'TRIAL
BT JUBYj for transportiiig us beyond seasf to be ja-ied^for
pretended offences, &c."'' . i '•': - . .ji .-.¦..
It was doubtleug the recollection of tliefle aots,.itbu&'
complaiaed'of, which Igditlse jipioplei^of the'Wbitea SM'te.'i
in adopting and amending their Constitution, to provide

12

JUDGE HAliLS OPINION

"III. . And whereas, also, by the statute
called The great charter of the liber-
,.,'. ties of EngSnd,;.it is declared, and en-
, acted"; That no freeman may betaken
pr ipiprispned, or be disseized of his
freehold or liberties, or his free customs,
pr be out-lawe(J oriexiled, or in any
manner destroyed,; but by the lawful
judgment of his peers, pr by the law
of the land. '
IV. And in the eighth i^nd twentieth year
of the reign of King, Edward HI, it
was .declared and enacted, by authority
of Parliament, That no man of what
©state or condition that he be, should
be put out of his land or tenements,
nor taken, nor imprisoned, nor dis
herited, 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 were brought before
justice, by your Majesty's writs pf
habeas corpus, there to undergo and
receive aa the Court shoujd order, and
their keepers commanded to certify
the cause of their detainer, no cause
was certified, but that they were de
tained by your Majesty's special com
mand, signified by the Lords, pf your
privy council, and yet were returned
back to several prisons, without being
charged with anything to which they
' might make answer , according to the
.law." ',
And by the tenth article of thistPetition
of Right, it was prayed among other things,
"that no freeman, iu any such manner as is
before mentioned, be imprisoned or de
tained," and to this, Charles 1st, after much

delay; , and a prior evasive answer, was at
last compelled by the House of Commons
ito yield his, assent in the customary form.
" Let it be law as is desired ;" and thereby,
as Hume.^ays, "gave full sanction and au-
fliority to the petition." (*) It is true, that
he afterwards acted in violation of the rights
thus solemnly recognized; but it is equally
true, that his head was brought to the block
by his oppressed and indignant people.
No further discussion can be necessary to
show the importance of the principles in
volved in this case, (f ) or the duty of eveiy
judicial officer to construe, with all reason
able 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 War Department of August 8, 1862,
but I am inclined to think they were not
intended to have the operation and effect
which it has, as I understand, been con
tended should be given to them, on accord
ance 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 question 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 considera,
tion was made, or purports to be made, by
or under the authority of the PresidAit of tbe
United States. The use of the words, " By
direction of the President of the United
States," in the first sub-division of the order
and their omission in the second and third
sub-divisions, may cast some doubt upon the
point, but for the purpose of the ; present

in express and posltire terms, and in the most careful and
perfect manner, for the trial by jury ; for the independence
andsuperiorityof the civil power; for a judiciary, 'not
sal^ectto .the executiye will; for the administration of
justice by that judiciary only, except in respect to per
sona actual employed m the military and naval service,
and therciore subject to military, (not martial,) law ; and
for the speedy and public trial of all .persons accused 61
ttrlme, in the State and district where it is alleged to have
been eonunitted.
(*) See Sume's History ot England, Chap, fil ; and

pp^ 376" 3T7° ^TS™° °'' *'"' °'"'^"*'»"°'" °' England, vol. 2
<tj j.' "fy li" "Beftal to quote firom the writinM of the
Zi of th^°AT'*'* 5°"^"="^ *°<' pWlosophicalfmritSB
and of the ablest ana wisest statesmen of Enrfand and
the Umted states, to show that the importance of Vm"
SfThTtl'i.T '""•«'y *« overrated. Pertinent quotatSons
of that kind are readily made; and enough to flU a vol
ume might be given. A number of such quotoUoM are
pen m the appendix, note G, to which the T^de?i! w

ON HABEAS CORPUS.

13

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 au
thority of Congi-ess, (*) suspend the privi
lege of the -writ of habeas corpus.
When the counsel for, the petitioner, some
dsya since, suggested that he desired to ap
ply for a, habeas corpus to bring up, the
body of the petitioner, I had the itupressibh
that Congress^at its late session,:had passed
an act iuthorizing the President to suspend
the privilege of tbe writ of habeas corpris,
and that he had sanctioned the order of the
War Department, under such authority. —
If this had been the case, 1 should have held
it to be my 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 «f the
power of the President to suspend the. priv
ilege of the habeas corpus, without the au
thority of Congress,' is therefore presented
in this case, if the order of the War Depart
ment is deemed to be the order of the Presi
dent, 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, generally considered as no longer
open to controversy, until it was brought
prominently before the public by the case
of MerrymaUj before the learned and vener
able Chief Justice of the United' States. In
that case, (24 Boston Law Reporter, pages
78 and 79,) tho highest judicial officer of
the United States did not hesitate to'declare^
in respect to the- claim that the President
had the ipower to suspend the privilege of
the writ of habeas corpus, that he " listen-
¦ed 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 difference of opinion, and that it was
admitted on all hands that the privilege of
the writ could not be suspended,, except, bv
act of Congress." .. .i.( '
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,
xmliss when in casesrof rebdiion' or inva
sion, the public safety may. require it," and
the reasoning of the Chief Justice, in the
case referred to, is sufficient, in my. ju(dg-
ment, to show ,that .the power of suspen
sion is a legislative^ add not an executiye
power, and must be exercised, or its exercise
authorized by Congress.
But the question does not rest upon the
reasoning or authority of the present Chief
Justice, He properly cited the authority of
Chief Justice Stoi'y, 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
lias produced: I cannot forbeai' now ,to
quote that portion of the opinion of 'the
Chief Justice which refers to the authority
of Mr. Justice Story, and of the Supreme
Court of the United States. The Chief
Justice says : " But I am not left to form
my judgment upon this great question from
analogies between the English government
and our own, or the commentaries of Eng
lish 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 conclueion,
I have the commentaries on the Constitu
tion 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

(•) By the first article — ^indeed by the very first provr
ision-T-of th^ Constitution of the Ignited States, it is prov
ided that ''AU.le^lative powers herein granted shall be
vested in a .Congress of the United States, which shall
consist of a Senate and House of , Representatives." A
f lower to modify, suspend, or repeal 'a law, is clearly si
egislOitive po^er ; ae, muc^ so, as the power t^ enact a
law j^and therefore only the legislative power, (or Con
gress,) can suspend the operation of a law, or authorise

the judges, or. co,urts of, tlie IJnited States to decline to
discharge their duties under it. The Constitution, so far
from authorizing the Presit^ent to allspend the -operation
of a law, expressly provides [Art. % Sec. 3,] that it shall
be the duty of the President, "to take' care that the laws
be faithfully executed." [ And it requires him to take, an
oath, "to the best of his ability to preserve, protect and
defend the Constitution of the United States." ' ' '

14

.JUDGE HALl'8 OPINION

also the dear and authoiitative decision of
that Court itself, given more than a half
century since, and conclusively establishing
the principles 1 have above stated.
Mr. Justice Stoi'y, speaking in his com
mentaries of the- habeas corpus clause in
the Constitution, sayfe, ' It is obvious that
cases of a peculiar emergency may arMs,
which may ju.stify, nay, even reqiiire 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
appughended upon suspicion have suffered
alpng imprisonment, sometimes from-i'de^
sigta and sometimes because they were for
gotten, the right to suspend it is exprtssly
confined to. cases of rebellion or invasion,
where the public safety may require iL' A
very just and wholestoe 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 beeh
authorized' by Congress since the establish
ment of the Constitution. It would seem.,
as the power is given to Congress' to sus
pend the writ oi habeas cdrpus in' the cases
of rebellion or invasion, that the right to
judge whether the exigency had arisen,
must exclusively belong to that body.' |^3
Story's Com. on the Constitution; section
]836.] And Chief Justice Marshall, in delivering
the opinion of the Supreme Court in the
case of ex parte Bollmao and Swartwout,
uses this decisive language in 4 Cranchy 95 :
'It may be worthy of remark that this
act ('speaking of the one under which I am
proceeding,)' was passed by the fii%t Con
gress' 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 a peculiar force, the ob
ligation 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

I itself would be lost, although no law for its
' suspension should be enacted^ Under the
imprtjssidm of thiS obh'gation, they gave to
all the Courts the power of awarding wrife
of liabeas 'corpus.' And again, in ^a^e
101; '. ¦"¦- ¦¦-- : ¦¦ '•¦' ' '"-I
'If at any. time the public 'Saf^tty 'should
require the suspension of the 'pO'Jrei's vested
by this act in the Courts of the Unitfid
States, it is for the Legislature .to say so.
The question depends upon political cotisid-
erations, on which the Legislature 'iU Ui
decide. Until the Legislative will be ex
pressed, ihis Court can only see its-duty and
obey the laws.' ;
1 can add nothing to these clear and erii-
phatic words of my great predecessor."^ '
In the course of his elaborate and well
considered opinion, Mr. Chief Justice Taney
states his-.views at length, and I shall make
several ex*i-aots from othter jparts • of his
opinion to show the manner in which the
question camte before him, the conchWioos
to which he arrived, and a portion of the
argument by which his views are sustained.
He says : '"The case, then, is siriorply this,
A military officer itesiding. in' Pennsylvania,
issues' an order to arrest a citizen of Mary
land . n-pon vague and indefinite vharges;
¦without any proof, so far as appears. . Un
der this order his house is entered in the
night: he is seized as a prisoner,. and con-
•veyed to Eort McHenry, and there- kept in
close confinement. And when n,. habeas
*orj3MS is served on. tbe commanding sffi-
cer, requiring him to produce' the ptisoner
before a Justice of the Supreme Court, in
order thathe 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 di»i
cretion, suspends it in this case, and on t^
ground refuses obedience to the writ. ¦ '
As the case comes before me, therefoi-b,
I understand that the President not only
claims the right to suspend the writ of
habeas corpus hiipself, at his discretion, but
to delegate that discretionary power td 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. -

OH. HABEA.'=( ,OOKPIJS.

15(

.No official notice has been given tp the
courts of justice, or to the public, by pro
clamation or otherwise, that the President
claimed this power, and l^d exerdsed it in
the manner stated in the return. And I
cerU^inly listened to it with some surprise,
foi? X had supposed ila to be one of those
points of Constitutional law upon which
thej« wafifiQ difference of opinion, and that
it was admitted on all hands that the privi
lege of the writ could not be suspended
except by act of Congress.
' Wheii the conspiracy of which Aaron
Burr was the head, became so formidable,
and was so extensively ramified as to justi
fy, in Mr. Jefferson's opinion, the suspension
of the writ, he claimed on his part, no power
tpsuspenJ it, butcommunicated his opinion
toCongress, with all the proofs in his pos
session, in prder that Congress might exer
cise its discretion upon the subject, and
determine whether the public safety requir
cd il. And in the debate which took place
upon fhe subject, uo one suggested, that Mr.
Jefferson might exercise the power himself,
it^ in his opinion, the public safety demand-
ed'it. j
Having therefore -regarded the question
as too plain and too well settled to be open
to dispute, if the commanding officer had
stated th^t upon his own responsibility and
in the exercise of his own discretion, he.
refused, pbedie.noe to the writ, I should have
contented myself with referring to the clause
in the Constitution, and to the construction,
it received from every jurist and statesman
of that day, when , the case of Burr was
before them. But being thus officially no
tified that the privilege of the, writ has
been suspended under the orders and by
tb©.. authority of the President, and, believ
ing as I do, that the President has exercised a
ppwer which he does not poslfess under the
Constitution, 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 fivst article.
This article is devoted to the legislative
department of the United States, and has
not the slightest 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 prescribing
the, manner in which these two branches of
the legislative department shall be chosen,
it proceeds to enumerate specifically the leg
islative powers which it thereby grants, and
legislative powers which it expressly pro
hibits, and at the conclusion of this specifi
cation 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 Government 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 con
fined to the specific objects before enumer
ated. But as this limitation was unavoid
ably Somewhat indefinite, it was deemed
necessa,ry to guard more eftectually certain
great, cardinal principles, essential to the lib
erty of the citizen, and to the rights and
equality of the States, by denying to Con
gress, in express terms, any power of legis
lating over them. It was apprehended, it
seems, that such legislation might be at
tempted 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 con-i
ceined, and, accordingly, this clause was
mmediately followed by an enumeration of

(*) It is not, perhaps, strictly cprrect to. speak of the
provi^on of tbe Constitution here referred to^ as q.wttor-
, izing the suspension of the priyilege of the writ of habeas
corpus. The general provision.of the. clause is clearly and
wholly restrictive and prohibitory; a^dtlie special, except
ion, which limits the effect of thp general proyision,
though generally spoken of as authoAzing the suspensioi;!,
in the excepted ca,ses, does not, in fact, autlwrize it, bu-t

only leaves untouched, in such excepted cases, the au
thority which Congress would have had, in all cases, if
this general restrictive provision had not been introduced
The special exception, however, was necessary to the con-
tiaued existence of such authority ; and may the:fefore, in
one sense, be said to authorize or allow, its exercise. And
this has probaJ)ly led to tbe use of the lauguage, found in
th^text. . ' '

16

.nTDSE HALL'fe OPINION

certain feiibjeCts to which the powers of leg
islation shall ''not 'extend; and the great
importance which the framers of the Con
stitution 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, excefit in cases of invasion and
rebellion, is first in the list of prohibited
powers; and even in these cases, the power
is d'enied, and its exercise prohibited, unless
the public safety may require it. It is
true that in the cases mentioned Congress
is, of necessity, the judge of whether the
public safety does or does not require it,
arid its judgmisrit, is' conelusivfe. But' the
introduction of these' Words is a standing'
admonition to the' legislative body of the
danger of suspending it, and' of the extreme
caiition they should exercise before they
give the government of the United States
such powei'ibver the liberty of a citizen.
It is the second article of the Constitu
tion' that provides for the organization of
the executive department, and enumerates
the powers conferred on it, and prescribes
its duties. ' And it 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 uot a
word in it that can furnish 'the slightest
ground to justify the exercise of the power.
The article begins by declaring that the
exiecutive power shall be vested in a Presi
dent of the UMted States of .Airierica, to
hold his office during the term of four
years ; and then' proceeds to prescribe the
modebf electiori, and to specify in precise
and plain words the powers delegated to
him, and the d'nties imposed upon him.
¦* * * * * *
He is not empowered f attest any one
charged with an offence against the United

States, (*) atid whom he iBay, from the evi
dence before him, believe to be guilty, nor
can be authorize any officer, civil or mili
tary, to exercise this power, for the fifth
article of the amendments to the Constitu-'
tion expressly provides that no person shall
be deprived of life, liberty, or property,
without due pro6css of law — that is, judicial
process. And even if the privile^ 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 ar
rested and imprisoned by ' regular judicial
process, he could not be detained in prison
or brought to trial beforea military tribu
nal, for the article in the amendments to
the Constitution, immediately following the
one referred to, that is, the sixth article,
provides that, in all criminal prosecutions
the accused shall enjoy the right to a speedy
and public tiial by an impartial jury of the
State and District wherein the crime shall
have been committed, which District shall
hav^ been previously ascertained by law, and
to be informed of the nature and cause of
the accusation ; to be confronted with the
witnesses against him ; to have compulsory
process for obtaining witnesses in his favor,
and to have the assistance of counsel for
his defence.
And the only power, therefore, which
the President possesses, where the • life, lib
erty, or propei"ty,' 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 Constitution,
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 emergency, or in any state of things,
can authorize 'the suspension of the privi.

(*) The followin'g extract from au oflScial opinion of
Hon...Wm. Wirt. Attorne.v-General of the Ujjited States,
under President Monroe, dated September 8. 1815, [vol. 1.
of Opinions of Attorneys-General of United State's, p. 229]
is instructive on this point: — "Arrest for trial is a proceed
ing which beloo,Q:s to the judicial, not to the executive
branch of the government; and the warrant of arrest is al
ways preceded by evidence — ex parte, to be sure, but still
evidence — to wit, information on oath. Can the President
of the United States prder an arrest either by proclama-
lion, or by, instruction to raarslials? Would not such proc
lamation or iudtnictions bd, in effect.awarrant to arrest ?
It is very clear to me, that they would, and that cither of
them would be a violation of the sixth article of the

amendments of the Constitution of the United' ' States
which provides that * the right of the people to be secure
in their perjoiM, houses, papers and effects, against un
reasonable searches and seizures, shall not be violated;
and MO warrant shall issue except upon probable cause,
supported by oath or aflSmiation, and particularly describ
ing the place to be searched and the persoqrt to be seized.'
It was one of the strotag grounds of objection to the cele
brated alien law, that it gave to the President power to
arrest; 'a power.' says Judge'Tucker, 'which it was pres
umed did not exist either in the executive of the State or
of the Federal Qovernment,' 4 Tuokkr's Bwckbtosb,

ON HABEAS COEPFft.

ir

lege 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 legislative
power, by suspending the writ of habeas
corpus, and the judicial power also, by
arresting and imprisoning a person without
due process of la;w. Nor can any argu
ment be'^rawn from the nature of sover
eignty, or the necessities of government,
for self-defence, in times of tumult and
danger. The government of the United
States is one of delegated and limited
powers. It derived its existence and an-
.tbority altogether from the Constitution,
\nd neither of its branches, executive, legis
lative, or judicial, can exercise any of the
powers of government beyond those specifi
ed and granted ; for the tenth article of the
amendment to the Constitution, in express
terms, provides that, ' the powers not dele
gated to the United States by the Constitu
tion, nor prohibited by it to the States, are
reserved to the States respectively or to the
people.'
* * * * While the vklue-
set upon this writ of habeas corpus in Eng
land 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
wondered, at that the continuance of the
writ thus made' effective should have been
the object of the most jealous care. Ac
cordingly, no power in England short of
that of parliament, can suspend or author
ize the suspension of the writ of habeas cor
pus. I qiidte again from Blackstone: [1
Com. 136.] But the happiness of our Con
stitution, is, that it is not left to the fexecu-
jtive power to determine when the danger of
the State is so great as to render this meas
ure expedient. It is the parliament 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 Constitution of
the United States has conferred upon him,
more regal and absolute power over the
liberty 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 exer
cised by the sovereign, even in the reign of
Charies the First" (*)
The Chief Justice, in his opinion in the
case of Merryman, 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 President had power
to suspend the privilege of the habeas cor
pus. 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 thjB
House the bill was openly and ably discuss
ed by several members; and, though the
bill only proposed to suspend the privil
ege "for three months and no longer," in
"all cases where any person or persoiti
charged on oath with treason, misprisiofi'of
treason, or other high crime or misde
meanor, endangering the peace, safety 'or
neutrality of the United States, have been,
or shall be arrested and imprisoned by vir
tue of any warrant or authority of the Pres
ident of the United States, or from the chief
executive magistrate of any State or Terri
torial government, or of any person acting
under the direction or authority of the
President of the United States," the House,
by a vote of 113 to 19, rejected the bill,
on the unususal motion 'that the bill be re
jected ;' which is' considered'a motion of in
dignity, indicating .that the bill is not worthy

C*.)! The/President of the, United States and the King
of England may pardon an, offense already committed,
and to that extent may graiit imknuijity to an ofTender
against the lav/s. A pardon is somewhat in the nature
of a dispensation, in some particular case, but diflfers
from it m being always and necessarily granted after
the offense pardoned has been committed, But "a dis
pensation, onti the- suspension bf a law are very; different
nets. " Anbiey, (Laws and CoNSTiTtrTioka or B* WaAd,
p. 836.), says. "A suspension is general, and needs no
leaner grounds than such as ar? required for an aft ot
(3)

Parliament, Consequently, it is no more in the power
of the Monarch to supend laws without the concurrenoe
of tbe estates of the legislature, than it is iu his power '
to make them."
And De Lolme, (SiBPiraK's db I/OLMi:, Vol. 2, Chap. 4
p. 631) says "The basis of the English Constitution, the
capital prlneiple, on wjiich all others depend, is, that
the legislative power belonzs to Parliament alone; that
is to say, the power of establishing laws, pnd of 'ftbrp-
gating, changing, or explaining Men;," And see post
note b, Appendix,

18

JUDGE HAT.T.S OPINION

of deliberate discussion and consideration in
t^^usn^l, form. i[Hui;d,pn Habeas Car
pels, 135.]/(*)
In tlie case of Jphnson vs Duncan, &o,
[¦3 Martin's La. 'Rep. 531,1 this question
w^s brought under , consideration ; and,
tliovgh Chief Justice Martin refeiTed to the
decision of the Supreme Court, in the case
cited by Chief, Justice Taney, as conclusive
authority, he nevertheless proceeded to ex
amine the question as though it had not
been autl^oritatively decided. The whole
opinion is remarkable forits vigor and clear
ness, and will repay the most careful ex-
apiination ; :and I shall^exti'act a portion of
it which direcfly relates to the question
now under consideration. After referring
to the avgufnent that all the .functions of the
ciyil magistrate had been suspended by a
prgplaipation of martial law, by the officer
conimanding 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 det^iiled the limitations of the
power of the. Legislature of the Union. It
is there provided, 'that the privilege of the
wpt of habeas corpus shall not be, suspend
ed^, unless, phen in fases of, invasion or re-
b^llic^, tlie pubjic safety may reqiiire it,'
'We, are told that the commander of the
inilitary district is the person to suspend
the writ, and is to do so W|hfinever, in his
judgment, the public ;safety appears to re
quire rit; .that, as he may thus, paralyze the
aiim f.of tlie justice of his country in, the
mpst important case, the protection of the
personal .Uberty of the citizen, it follows
that as he who can do the niore can do.,the
less, he can aJso suspend all other functions
of |the civjl imagistrate, -v^tioh.he does by his
prqcl^m^tion, of martial law.
"rjpismode of reasoning varjes totaeoelqi^)
from, the decision of the Siupreme Court of
the United States, in the case of Swartwout
and Bollman, arrested in this city in 1806,
by, General Wilkinspn. The Court there

declared that the Constitution had exclus
ively vested in Congress the right of sus
pending the privilege of the writ of habeas
corpus, and that body was the sole judge
of the necessity which called for the suspen
sion. '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,J it is for the Legislature
to say so. This question depends on political
considerations, 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,
however, 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 en
deavour to cast on this article of the
Constitution, that the people should know
that their rights, thus detined, are neither
doubtful nor insecure, but supported on the
clearest principles of our laws.
Approaching, therefore, the question as if
I were without the above conclusive author
ity, 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, therefore,
if intended to suspend the functions of the
Courts, or , its members, is an attempt to
exercise powers thus exclusively vested in
the Legislature — I therefore cannot hesitate
, in isaying 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 officer
of a military district to suspen4 the laws of
this State, as that Constitution and these
laws are paramount to those of the State,
they must regulate the decision of this
Court. This leads me to the examination of the
power of suspending the writ of habeas

^•y.-^P.^ seeBpnton'SiAlJrWgoriientofCongressional i
Debugs, Vol. 8. p. 604, noje.
H(t) .,Jli» (^0 By th? wJitile heaye.ns— as »)dely as 1

thewho^e extent of the heavens— signlfyipg the greatest
possible difference.

OS HABBAS COEPUBj

19

corpus, and that which it is said to include,
of proclaiming martial 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 con
tains extend to any of the other branches.
Iniquum est perimi de pacta, idde quo cog-
itatum non est. If therefore, this suspending
power exist in the executive, (under whose
authority it has been endeavored to exercise
it,) it exists without any limitation; then the
President possesses, without a limitation, a
power which the Legislature cannot exercise
without a limitation. Thus he possesses a
greater power cUone, than the House of
Kepresentatives, the Senate and himself
jointly. Again, the power of repealing a law, and
that of suspending it, (which is a partial,
repeal,) are Legislative powers. For eodem
modo quo quid constituitur, eodem modo des-
truitur. (*) As every legislative power that
may be exercised under the Constitution of
the United States is exclusively vested in Con
gross, all others are retained by thb people
of the several States.
In England, at the time of the invasion
of the Pretender, assisted by the forces of
hostile nations, the Habeas Corpus act
was suspended; but the executive did not
thus of itself stretch its own authority;, 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. Parliament may repeial 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 have thus over
thrown the columns of public liberty.
[Id. 275.]
If it be said that the laws of wai'', being
the laws of the United States, authorize the
proclamation of martial law, I answer that
in peace or war, no law can be enacted but

by the'legislativepower. In England, from
whence the ' American Jurist derives his
princi'plesjin this respect, ' martial law can
not be used without the authority of Parlia
ment.' 6 Comyns, 229. The authority,
of the monarch himself is insufficient. In
the case of Ghant vs. Sir C. Gouldj 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 inilitary tribunal, the counsel
who resisted the motion, said it was not to
be disputed that martial law can only be
exercised in England, so far as it is author-
ize,d by the mutiny act and the articles of
war, all which are established by Parliament,
or its authority, and the coUrt declared it
totally inaccurate to state any other martial
law, as haying any place whatever within
the realm of England."
In the same case, Mr. Justice Derbigny,
in deUvering his opinion, said : " To have a
correct idea of martial law in a free county,
(f ) examples must not be sought in the arbi
trary conduct of absolute governments. Tbj
monarch who unites in his hands all tlje
powers, may delegate to his 'generals an au
thority unbounded as his own. But in a
Republic, where the Constitution has fixed
the extent and limits of every braitich of
government, in time of war, as well as of
peace, there can exist nothing, vague, uncer
tain or arbitrary, in the exeijcisel of any
authority. The Constitution of the United States, in
which everything necessary to the general
arid individual security has been foreseen,
does not provide, that in tiriies of public
danger, the executive power shall reign, to
the' exclusion of all others. It does not
trust into the hands of a dictator thereins of
the government. The framers of that charter
were too well aware of thehazarfsto which
they would have exposed the fate of' the
Republic by siich a provision, and had they
done it, the States would have rejebted a
Constitution stained with a clause so threat
ening to thdir liberties. In the Uieatitime,

(*) A judicious friend has very properly suggested
that, as the publication is very likely to be read with
interest by man»non-profesaional persons, a translation
of th© Latin phrases should be given. Adopting his
suggestion, this has been done where ever it appeared

to be necessary for the benefit of the generjirrea'der.
The phrase in the iex!t may be rendered thils:—
" In the same manner in which anything is efitahfisheil,
in the same way it may be overthrown or'd'esti'Syea.'''
(t) See Note on Mabtiai. Law, A-ppBiidS, Wrtb 'B

m

.ttTDGE irALL^S OPINIOS

conscious of the necessity of removing all
iujipedinients to the exercise of the executive
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 hap
pen, 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 justiy cele
brated work on the Constitution of that
country,) 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 executive 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
tars of internal and hidden enemies, which
e 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 in no other than a public place;
they were to be tried by their peers, and
have all the usual legal means of defenco
allowed them, such as calling of witne^es,
peremptory challenges of jurors, &c.; and
can it be asserted that while Britifsh subjects
are thus secured against oppression in the
worst of times, American citizens are left at
the mercy of the will of an individual, who
may, in certain'case8,<Ae necessity of which
is to be judged of by himself, assume a
supreme, overbearing, unbounded power!
The idea is not only repugnant to the prin
ciples of a free Government, but subversive
of the very foundations 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 seivice
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. (*)

(*) The meaningj of this is that aXl the militia of that
fiarticular district or section of country had been called
.Into active service by direction of the President, under
tlie aiitliority conferred by an act of Congress, and that
therefore, all citizens liable to military duty, and thus
called into active service, thereby became' subject to
actual and active military duty, to military author
ity, and to military law. But this military law, as will
be hereafter shewn, is very diiferent from what is more
nsually and more properly denomintaed martial law.
See. 8 of the 1st article of the Constitution of^the
United States expressly authorizes Congress, (not the
President.) to declare war, to raise and support armies,
provide and maintain a navy, make ru(es for the
government and regulation' of the land and naval
Forces, and provide for calling forth tlie militia
to execute the laws of the Union, suppress insur
rections, and repel invasions.^^ Congress has ex-
ercisod this authority, and has passed several acts
under it, and among them one enacting "Itules and
ArMoles'of War."
Tlie following extract from Scott's Military Diction
ary; published m 186'2, (title, aetioles of wae, p.p. 69-
60,) may not be uninteresting in this connec tion.
"¦Under the Constitution of the IJnited States,
Congress only can make rules of government for tho
Una and naval forces, and those rules, commonly
called ABTioLXB OP war, were originally borrowed
jointly from the English Jlutiny Act, annually passed
by Parliament, and their articles of war established by
the Kiiig. The existing articles for the government of
the army of the United States, enacted April 10, 1806,
are substantially the same as those originally borrowed
July 80, 1776,, and enlarged by the old Congress, from
the same source, Sep. 20, 1776. The act consists of but
three sections. Tho first declares, the following shall
be th* rules and arUcles by which the armies of the

United States shall be governed, and gives 101 articles,
all noticed in these pages. Each article is confined in
express terms to the persons composing the army. The
second section contains the only exception in the cases
asfollows : In time of war, all persons not citisensiif,
or owing allegiance to tite United States of Ainerica,
wlio shall be found lurking as spies, in or about the
fortifications or encampments of the armies of the
United States, or any of tli,em, shall suffer death, accord
ing to the law and ttsages of nations, by sentence ol »
general court martial." The third act merely repeals
the previous act for governing the army.
The articles of war therefore are, and under the
Constitution of the United States, can be nothing mors
than a code for the government and regulation of the
army, or, in other -words, within the United States
these articles are a system of rules superadded to the
common law, for regulating the citizen in his cftpadty
as a soldier, and applicable to no other citizens.
Beyond the United States another code Is essentia!.
for, although armies take with them the rules and
articles of war, and the custom of war in like cases, in
a foreign country a soldier must be tried by some tri
bunal, for offences which at home would be punishable
oy, 'lie ordinary courts of law. It is impossible to
subject him to any foreign dominion, and hence, in tlie
absence of rules made by Congress for the government
of the army under such circumstances, the will of the
(..ommander of tho troops,M! necessitate rei, ["from the
necessity of tho case,"] the place'of law, and the decla
ration of his Willis martial law."
Until the militia called into service are mustered or
cnUed together, they are not subject to the articles of
war--in other words, to military la^v: Mr Justice
Woodbury, in Luther vs. Burden; 7 Hownrd 60- 5
Wheaton, 20; Story on Con., vol. 8, see. ifo \ '

ON HABEAS COEPUS.

21

That I conceive to be tho 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 lo be exercised whenever
it is practicable. Even where circumstances
have made it necessary to suspend the priv
ilege of the habeas corpus, and such suspen
sion has been pronounced by the competent
authority, ther^ is no reason why the ad
ministration of justice, generally, should be
.stopped. For, because the citizens are de
prived 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 martial law, there
fore, cannot have had anv other eflect than
that of placing under military authority, all
the citizens subject to military service. It
is in that sense alone that the vague ex
pression of martial law ought to be under
stood among us. To give it any larger ex
tent would be trampling upon the Constitu
tion and Laws of our country. (*)
That the doctrines of these decisions in
regard to the exercise of the power of sus
pending the privilege of the habeas corpus
have been almost univei's'ally considered as
incontrovertible, is fully established, by re
ference to the works of many elementary
writers, and by the fact that no evidence of
the dissent of other jurists or of the profes
sion has been recorded. Hurd, in his work
on Habeas Corpus,' in reference to the con
stitutional provision before referred to, says :
"Rebellion and invasion are eminentiy mat
ters of national concern; 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 expedient to adopt for their suppres-.
sion." p. 133. And (p. 134,) "This power
has never been exercised 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 consid
ers this provision of the Constitution urider
the head of "Constitutional restrictions upon
Legi.slative power." Smith's Corns, chap.
8, sec. 229. And Curtis, in his History of
the Constitution, also refers to it as one of
the restrictions upon the powers of Con
gress. 2 Curtis Hist. Con., p. 859.
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 habeas
corpus act can be suspended only by the
Legislature, and that the proclamation of
martial law, by a military officer, is not suf
ficient." The article on martial law in the same
work contains the following: "The Consti
tution, by implication, at least, (t) ^'^^ P®'"'
mits 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 exigen
cy has arisen belongs, it seems, exclusively
to Congress. So in England, martial law
and its incident, the suspension of the writ
of habeas corpus, required the- authority of
Parliamentary acts to give them a constitu
tional existence." (J)
When the question of the adoption of the
Federal Constitution was under considera
tion in the Massachusetts Convention, the
constitutional restriction upon the power of

(*) The following additional extract from this opin
ion of Mr. Justice Derbigny is worthy of attention. He
saya:^— "But the counsel for the appellant to support his
assertion that in the circumstances then existing, the
Court could not administer justice, went further and
said, that the city of New Orleans had become a camp,
since it had pleased the General of the seventh military
district to declare it so; that within tbe precincts of a
camp there can exist no other authority than that of
the commanding ofBcer. If the premises were true, the
consequences would certainly follow. But the abuse
of words! cannot change the situation of things. A
camp is a' space of ground occupied by an army for their
tempjrary habitation while they keep the field. That

space has limits; it does not extend beyond the ground
actually occupied by the army. The camp of the
American army during the invasion of our territory by
the British was placed at the distance of four miles
below the city. During the time the city might be con
sidered as a besieged ;place, having an entrenched
camp in front. Sutthetransformationbf the city itself
into a camp by the mere declaration of tlie General is
no more to be conceived than would the transforma
tion of a cam/p into a city by the same means."
(1) Very doubtful: See note on Martial Law, in ap
pendix, at the end of this opinion.
(J) See note S, Appendix.

22-

JUDGK HAIi's OPINIO^'.

suspending the privilege of the habeas cor
pus was discus'sed by Judges Dana and
Sumner, in the presence doubtless of Na
thaniel Gorham and Rufus King, members
of that Convention as well as of the one
thafcframed the Constitution of the United
States, and both Judges evidently regarded
it as certain that Congress only could sus
pend the privilege. — -2 Elliott's Debates on
the Constitution, 108 and 109. Hurd on
Habeas Corpus, 126 and 127. (*)
And during iShay's rebellion it was the
Legislature of Mlassachusetts, and not her
Governor, that isuspended the privilege of
this writ. — Hurd, ori Habeas Corpus, 136.
Against these authorities, and the gen
eral sentiment of elementary writers, (f) there
stands ; opposed the practice of the War
.Department, first inaugurated in a period
of.greW excitement and alarm, and the
official opinion of the learned and venera
ble gentleman who now holds the office of
Attorney General of tbe United States. —
For that- genitleman I entertain the highest
respect. His purity of motive and char
acter, his great legal acquirements and his
undou4ted patriotism and ability are un
questioned ; but, .even in these respects, that
excellent gentleman would not wish his
friends to claim more than that he was the
equal of the leaa-ned Chief Justice of the
United. States. Placing their opinions up
on the same foe iting, they would only neu
tralize each oth( ir, and then the deliberate
opinions of Ma' rshal, and Stoiy, and Mar
tin, and of thf ) other Justices of ^e 8u-
preme Courty v rho concurred in the opin
ion of their C riief, in the case of Bollman
and Swartwoijt, (4th Cranch, 75,) support
ed, as they arci, in my judgment, by unan-
swefable argi ament, are decisive of the
ijiffiestion, and constrain me to decide that
the President , without the authority of
Congress, has no constitutional power to

(*) In the debi .te referred to in the text, Mr. Adams
saidv.'^That.^A^: power gi/oen to the general Govern
ment to suspend, this privilege' in cases of rebellion and
invasion did uot^ take away tlie' power of the several
States to suBj-iend it if they shall see fit." In saying this
he of course .r^ei -red to a suspension of the privileges of
the writ as ¦ tuthC'rized to be issued by State Judges and
Courts und-erth*! laws of their State; lor it ia clear that
no State hs ,s the power to suspend the privilege under
acts of Coi igress authorizing the Judges and Courts of
the Unitei 1 States to issue the writ.
In the (ame debate Judge Dana, referring to the

suspend the privilege of the writ of habeas
corpus in the United States. The prisoner
is therefore in any view which I have been
able to take of this ca.se entitied to the ben
efits 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 warrant or order of commitment under
which he may be now held,, may be shown.
The District Attorney of the United States
will have notice of the allowance of the
habeas corpus, and if, on its return, 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 anv offence- against the laws of the Uni
ted 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 mat
ter, though the application for a habeas
coupus was ex parte; and was decided
without the benefit of an argument, for or
against the application. 1 have done so
because the duty of deciding upon the
application was a delicate and responsible,
as well as "an imperative one; and being
compelled to decide a question of such im
portance, under such circumstances, it was
but respectful to those high officials, whose
legal opinions, opposed to mine, have led to
the ari-est of the petitioner and the denial
of the privilege of the writ of habeas corpus,
that 1 should state, at some length, the rea
sons for my conclusions, and the authority
on which I relied. I have preferred, how-
ev«r, even in expressing my own decided
opinions, to adopt the deliberate and elo-

provision in tbe Massachusetts Constitution, said, * *
* "As our own Legislature can, so might Congress
continue the suspension of the writ from year to year.
The safest and best restriction, therefore, arises from
tho nature of the cases in yr\\\Qii Congress areauthori-
zed to exercise that power at all, namely, in those of
rebellion or invasion."
Judge Sumner said: "TVirti this was a restriction mt
Congress', that the writ at luibeas corpus should not be
supended except in cases of rebellion or invasioa.
(t) See Note W in Appendix, for several oth^f su-
thpritios on this point.

ON HABEAS CORPUS.

23

quent language of departed jurists, of world
wide reputation: — (language used by them
in deciding 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 bene a) — rather
than the less forcible and less authoritative
language in which 1 might have expressed
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 vei^
recent period, been questioned, or their doc

trines assailed by any respectable 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 ineflfaceable footprints of
Marshall, of Story, of Washington, of Liv
ingston, 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 tha
writ prepared by the Clerk.

DOCUMENTS

AND STATEMENT OF FACTS IN THE CASE.

JudSon D. Benedict, whose arrest caus
ed the foregoing opinion, is .'a regularly or
dained Minister of the Gospel — was born in
the State of Vermont — always lived in the
Northern States — is fifty-five years of age —
has six highly cultivated and intelligent
children, sons and daughters, some of whom
are married, all residing in this County —
has not voted but once (and that at Town
meeting) for the last fifteen years — and the
peace doctrines of the sermon that occasion
ed his arrest, have, in public arid private, for
many years before this rebellion broke out,
been advocated.
, No more loyal man lives — and few men
have a deeper interest in the crushing out
of this rebellion. Being a man of thorough
religious convictions, he deemed it his duty,
at this time, to present to his brethren the
doctrines of " Christ's Sermon on the
Mount." On Sunday, the 31st of August, Rev.
Mr. Benedict preached a Farewell Sermon
to his congregation at Aurora, numbering
some three or foUr hundred persons. The
theme of the discourse was the duty of his
church in all the relations of life, and, par
ticularly, in relation to the war. Among
other thipgs, he gave it as his opinion that
the command of the New Testament was
explicit that christians shall not engage in
war of any kind. He referred to the Con
stitution of the State of New York which
grants military exemptions to Quakers, and
said he saw no reason why his brethren
should not obtain like immunity. If such
were not granted, in the case of a draft, he
advised his brethren not to resist it, but
(4)

rather, as lnw abiding cititizens, to submit
cheei'fully to any penalty the law might inv
pose. He said, also, that there was no
binding rule of the church; that a majority
of its members held a different opinion; and
that the subject was one for every man to
decide for.himself according to his under
standing of the word of God.
On Monday, a complaint was made to
Deputy Marshal Stevens, that Rev. Mr.
Benedict had uttered seditious language
tending to discourage enlistments, and re
questing him to come to Aurora and obtain
the proof. Mr, Stevens went to Aurora
Monday night, and at a private house, and
that night, and the next morning, took the
affidavits of four persons, neither of whom
are members of his church, the contents of
which are to thisdayunknown, the Marshal
having repeatedly refused to furnish the
prisoneror his'counsel with copies of them.
On the strength of these documents, as is
supposed, Mr. Stevens arrested the " Elder"
at his own house before breakfast on Tues
day morning, September 2d. He brought
him to this city, and conveyed him to. Fort
Porter, where he was confined in a room
with four other political prisoners, and was
suffered to remain until Wednesday morn-
' ing. at 11 o'clock, without having food or
drink; offered him. About noon on Wed
nesday, he was transferred to the Jail, by the
order of the Marshal.
Last winter, the .Rev. George B. Chee-
ver preached a sermon at the Church of the
Pilgrims,' in New York, to two thousand
people, and I believe, the same was pub-
lished-^in which he itisisted that the policy

26

DOOUMENTS AND STATEMENTS ,OF FACTS

of the President in prosecuting, the war,
was to restore the Union as it was ; that, if
successful, would leave slavery as it is. —
That, therefore, no christian, in any way,
could give aid to the administration in the
prosecution of the war against the rebels
without sinning against God. One of the
best citizens of thjs city heard the sermon. —
Nobody believed Dr. Cheever should be ar
rested for that, and, although undoubttdly
many supporters of the adininLstration heard
it and disapproved of it, they well knew it
would be bad policy to arrest him, inasmuch
as he preached as he did from a strong con
viction of religious duty.
'On the third day of September, i at the re
quest of the friends of Mr. Benedict, I ap
plied to several Federal officers,citizens,meet-
ing them together, for letters to the Secre
tary of War,, recommending his release.
I talked with them fifteen minutes, point
ing out to them the injudiciousness of Ws
arrest, the excitement it. had produced, how
it weakened instead of strengthened the
government in this county. Every man of
them refused to advise his release.
1 belie'i'e that if two or three of those
worthy gentlemen had delivered me such a
letter, I could have obtained, by telegraph,
ari order for his dicharge that afternoon.
1 then, the same day, applied to Deputy
United States Marshal Stevens, for a letter
from him recommending his discharge.
He refused to do it, saying, he had a
discretion to exercise in arresting, but, he
had no power to discharge. I said to him,
" But the War Departrnent upon being ad
vised by you that the government would be
strengthened by his discharge, would un
doubtedly be governed by your opinion and
order his release ! "
His reply was, "I shall make no such rec
ommendation." The following statement, signed, as it will
be seen, by a large number of the promi
nent citizens of Aurora, was also presented
to Marshal Stevens, the loj'alty and integri
ty of the subscribers being certified to by
Judges Hall and Sheldon :(?*) '
lye, the undersigned would respectfully repre^
.sent to the proper authorities, if they can be
reached, that wo are pained to lepn that Rev.,
(¦*) Hon..JameB.^heldon,,CountyJn(lgeof JSrjo County,

J. D. Benedict was arrested on Tuesday morn
ing, for preaching a sermon in Aurora, Sunday
last, which sermon it is alleged, was calculated
to discourage cnUstments. "We, the undersigned,
attentively listened to said sermon and can put
no such construction on it.
AtiROBA, Sept. 3d, 1862.
Gen. A^Ton Biley,

Horace Hoyt,
Daniel D. Stiles,
Sabina Potter,
Alonzo Havens,
Harry H. Persons,
Nehemiah Smith,
Ephraim ^Woodruff,
. Dorr Spojjner,
Whipple Spooner,
Edward Spooner,

Robert Person,
Wm. D. Jones,
Timothy Paine,
Wm. B. Paine,
Isaiah Phillips,
Reynolds Cole,
John P. Wilson.
Horace Prentice,
N. A. Turner,
Jonathan Smith,
Hugh Minton,

together with numerous ladies, members of the
Church and congregation.
I said, "Wifi you certify to the good
character of the people of Aurora who have
signed that statement." He refused to do
that. Then, for the first time, I looked at the
ordei' by which jailer Best held him.
Having no doubt that the General Term
of the Supreme Court, then in session, would
release him, I presented a petition for a ha
beas corpus to thein.
The petition and affidavits are substanti
ally like those presented to Judge Hall afier-
wiirds. There were but three judges on the bench :
Martin Grover of Angelica, James G. Hoyt
of Buffalo, and Noah Davis of Albion.
Judges Hoyt and Davis refused the allow
ance of the writ of habeas corpus, on the sole
ground, that the writ of habeas corpus was
suspended all over the Union. I told them
there was not a copy of the laws ot' last
session of Congress in the city. 1 had not
seen any proclamation of the President sus;
pending the writ. And, on so grave a mat
ter, I suggested the expediency of allowing,
the writ: and, then, when a return was
made, counsel on both sides being prepared
and heard, the right of the President to
suspend the writ, (and by that time the acts
of Congress, if any, being obtained) could
be deliberately determined.
Judges Davis and Hoyt said they would
take judicial notice the writ was suspended,
Neither of them intimated there, was, by
the order of Stanton, and the action of

OT BKNKDIOT HABEAS OOBPUS CASE.

2T

Deputy Marshal Stevens, atiy legal cause
for the arrest of Benedict shown.
Martin Grover dissented, declaring that
the writ ought to be allowed; that he had
no knowledge or information upon which
he could judicially act, of the suspension of
the writ. When a return was made, and
only then, could it be determined whether
or not any order for the suspension of the
writ was applicable to the case in hand ; and
if, when such return was made it appeared
there was no reasonable cause shown for his
arrest, he should be in favor of discharffing
the prisoner.
But the majority of the Court denied the
application of the writ, and such denial was
entered in the minutes of the General Term.
I then had, on the same day. of such
denial, requested Deputy Marshal Stevens
to informally consent to or not oppose an
allowance of a writ of habeas cqrpus by
Judge Hall, for the sole purpose of enabling
Mr. Benedict to give bail. That he could
give bail to the amount of $50,000 to com
ply with any condition the federal ofiBcers
might impose.
Stevens replied, he would' consent to no
such thing, and he would disobey any order ^
for his release on bail which Judge Hall
might make. And yet in the case of Mr.
Barker of Gowanda, such bail with the con
sent of a Deputy Marshal of Buffalo, had
been given given, and Barker released.
I soon after had an interview with Mar
shal Chase, and he proposed that on a future
day, witnesses should be examined on both
sides, before a federal Commissioner in the
• regular way, by examination and cross-
examination in public, and he would forward
their depositions to Washington.
This I agreed to,; and on the day fixed
several men and women who heard the ser
mon that occasioned his an-est, appeared as
witnesses. But instead of being examined
publicly, Marshal Chase insisted I should
draw the affidavits in private, bring each
witness to his private room, when he would
cross-examine them in private, which I
might write down as a part of their deposi
tion. 1 spent five hours in this kind of
work, and when finished Marshal Chase
said I might forward the papers, and be

would Write to the Department recommend
ing the restoration of the prisoner to liberty.
I took those affidavits with the consent
of Marshal Chase, drawn by hiha, every
witness being produced by the friends of
Benedict, to ihy iflSce. I directed my stu
dent, Mr. Miller to copy them; and Within
fifteen minutes after Mr. Millei" commenced
copying them, in my absence, Mr. Grai^t, a
Deputy Marshal, said to Mr. Miller, "the
Marshal had sent him for those depositions."
Miller replied, "I am copying them." —
Grant tOok' them from the table, and Mr.
Miller wetit with Grant to the Mai'shal's
office. Miller said to-Stevens, " I am copying
the papers." Stevens replied; "there was
no use in copying them, and Sawin knew
it, and Sawin could not make any damned
political capital out of it. I want the
papers to send off immediately, and if Sawin
wants to make a Copy of them, he can take
them and go to hell with them." They
were left with Stevens.
The family and friends of Benedict
waited one week after this, and no order
came from Washington.
The papers for Noah B. Clatk committed
for the same offence and by the same person,
were forwarded two days later and he was
released. '¦
After Clark was released and being un
able lo learn that there was any prospect of
any voluntary action on the part of the
Marshal Or the Secretary of War, for his
discharge, at the request of the family and
friends of Benedict I presented the papers
to Judge Hall for a writ of habeas corpus.
The following ai-e copies of such papers
together with. the Writ and proof of service;
and return of Best and Stevens, and order
of Judge Hall on Chase ; the second Writ
of habeas corpus and the proof of service ;
also the first Petition for a writ of habeas
corpus and papers accompanying: —
To THE Hon. Nathan K. Hall, United States
DlSTHICT JDDQE for the NORTHEtlN DiSTMOT
of New Tore.
The petition of Judson D. Benedict sh6wis ;
That he is now confined and restrained
of his liberty in the common jail, of the
County of Erie, by William F. Best, the
keeper of said jail.

DOCUMENTS ^D STATEMENT QE FAQTS.

That yonr petitioner is not oomniitted jor
detained by virtue of any process. issued by
any Court of the,- Uij^ed States or' any
Judge thereof, or by virtue of the final
judgment or decreeof any Court, or by vir
tue of .any process of any kind or description.
That the only cause of such detention
rendered by said jailor is a paper delivered
to him by A. G. Steye^s, Deputy United
States Marshal, a copy of which is hereto
annexed, marked schedule (A.)
That A.,,G. Stevens arrested your peti
tioner at Aurora, Tuesday morning, the
2d. day of September, inst„ , All he said to
your petitioner at tinie of arrest, was " I
have an unpleasant duty to perform, I have
come to arrest you,. I suppose you ,are
wiUing to ,go with me without opposition ?"
Your petiitioner replied, " most cert,ainly."
Said Stevens then took deponent to Fort
Porter, and. left him jthere where your peti
tioner stayed until removed to jail. .
Said Stevens showed no, paper to your
petitioner nor did he state any cau^e for
such arrest.
Your petitioner has neither by act or
¦ speech, been disloyal to the Constitution or
laws of the United States, or beenguijty of
any violation of any order of the W^ar De-;
partment, or of the President of the United^
States, or been guilty of any offence or act
subjecting him to arrest.
That your petitioner alleges. That such
airrest and imprisonment are illegal for the
reason that; he has not been charged with
any offence known to the laws, no process
has been issued, by anyCourt qr magistr,ate
for his arrest^-and deponent refers to an
nexed affidavit of Albert Sawin, his coun
sel, for the only pretense for his ai;rest gpven
by the United States Deputy Marshal.
Your petitioner therefore prays yoi^r
Honor to direct and authorize the issuing of
a writ of habeas corpus to be directed to
said A. G, Stevens, such Deputy Marshal
of the United States, and Williani F. 6est,
aforesaid, jailor of the County of Erie, di
recting and requiring said Deputy U. S,
Marshal and said jailor to produce the body
of your petitioner before your Honor, that
the cause of such imprisonment may be en
quired into and yonr petitioner may be set
at liberty. (Signed,) J. D. BENEDICT.

K,.^S

The Unitei),Staj;es or America,
The Northern District of New York,
County of Erib,
Judson D. Benedict being duly sworn
says that he has heard the foregoing peti-
tiori signed by him, read and know's the
contents thereof, and the same is true of
his oWn knowledge.
J. D. BENEDICT.
Sworn to before me, this 15th day of September,
1862. P. G. Parker,
U. S. Commissioner for Erie Cb.
( "A" )
Marshal's Office,
Buffalo, Sept'r 2d, 1862.
David M. Grant will take from Fort
Porter. Thomas Cummings,' James Parker,
Antoine Quanliet, Noah B. Clark and Jared
Benedict, prisonersconfined there, commit
ted under orders of the War Department,
and remove them to the Erie County Jail
for safe keeping, and, there detain [them un
til fi^rther order, and the sheriff or jailoi- of
said cOunty will keep them until further
order in said jail.
(Signed,) A. G. STEVENS.
V. S. Dep. Marshal.
To Col. E. P. Chapin, and the
Sheriff and Jailor of Erie County.

War Department, )
jAug. 8, 1862. )¦
Orpbred —
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 en
emy, or for 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 be
fore a military commission.
Third. The expense of such arrest and
imprisonment will be certified to the Chief
Clerk of the War Department for settle
ment and payment.
EDWIN M. STANON,
Secretary of War.

IN BENDICT HABEAS CORPUS CASE.

29

United States of America
Nobtheen District op New York, )-ss. -
ConNTT op Erie,
Albert Sawin, counsellor-at-law, being
duly sworn says, that at the request of
aboy,e named Judson D. Benedict, on the
8d day of September inst., he enquired per
sonally of Deputy U. S.' Marshal Stevens,
at his office in Buffalo, if he arreste4 said
Benedict by virtue of any order, process or
paper. . He said, he did not, but he shpwed
deponent a slip cut from a newspaper print-
ediia copy of which is hereto annexed, and
said ,that printed slip was his only author
ity -for the arrest of said Benedict.
ALBERT SAWIN.
Sworn this 15th day of September, 1862.
P. G. Pajiker, TJ. S. Commissioner.

(Endorsed.)
Northern District op New York, ss:
On the within petition 1 allow a writ of
habeas corpus to be directed to Albert G.
Stevens, U. S. Deputy Marshal and^William
F. Best, the keeper of Erie County Gaol,
and made returnable on the 18 th day of
September inst., at 10 A, M., before me,
and I direct the Clerk of the District- Court
to prepare the writ that I may eudorse an
allowance thereon.
(Signed) N. K. HALL,
U. S. District Judge.
Dated Sept. 15, 1862.

The President of the United States of
America, TO
Albeut G. Stevens, Deputt Marshal op the
, ~.^ , United [States, and William F
•! L. 8. > Best, the Keeper op the 'Erie
' — ,— ' CouSty Jail, Greeting:
You are hereby commanded, that. you
have the body of Judson D. Benedict, by
you imprisoned , and detained, as iti is said,
together with the time and cause of such
imprisonment and deterition, by whatsoever
name the said Judson D. Benedict shall be
called or charged, before the Honorable
Nathan K. Hall, District Judge of the United
States for the. Northern District of New
York, at tlie United States Court Room, at
the corner of Washington and Seneca Streets

in the Oity of Buffalo; in said Northern
District of New York, at ten o'clock in the
forenoon of the eighteenth day of Septem
ber, in the year of our Lord one' thousand
eight hundred and sixty-twoj to do and re
ceive what shall ''then and there be consid
ered concerning the paid Judson D. Bene
dict. ¦'¦: , •
And have you then -and !here this' writ.
Witness, the Hon. Nathan 'K. Hall* Judge
of the District Court of the United States
for the Northern .District of New York,, at
.the City of Buffalo, the sixteenth day of
Sej)ternber, in the year of oiir Lord one
thousand eight hundred and sixty-two.
GEO. GORHAM, Clerk.
(Endorsed.)
Northern District of New York, ss:
The within writ,! on petition of the with
in named Judson iD. Benedict, has been al
lowed, and hereby is allowed by me in pur
suance of tbe Statute in such case made and
provided. ¦
Sept. 16, 1862. ' ' -...-
N. K. HALL,
District Judge of the United States, .
for the.Northern District of New .York

To theJ Hon. Nathan K. Hall, Judge op the
United States for the Northern District
of New York;
.The statement of William F, Best respect
fully showeth :
That he is now, and since. the first day of
September instant, has been the keeper of
Erie County Jail. That on or about the third
day of Septetnber instant, he received into
said jail one Judson D. Benedict, by the name
of Jared Benedict. That he received him
under and by virtue of a written order signed
by A.G. Stevensj as a Deputy . Marshal of
the United States, of which a copy is hereto
annexed, and npt otherwise* That since he
so received tbe said, Benedict he has held
and now holds him by virtue of ,s^id order,
and on no other order or process; that he
has held and so holds him as the bailee or
custodian of said Deputy. Marshal and; 'tis
principal and not otherwise. T,hat on or
about the sixteenth day of September in
stant, he was served with a writ of habeas
corpus, issued by your Honor, directed to

30

DOcuMENTr ANn 8tatemi!nt of facts

the said A. G. Stevens, and to him the said
William F- Best, as keeper of the Erie
County jail, commanding them among other
things, to bring and have the body of the
said Judson D. Benedict and said writ be
fore your Honor as such Judge, on the
eighteenth day of September instanta t 10
o'clock A. M., at the United States Court
room, in Buffalo. That in obedience to said
writ it was the intention of me, the said
William F. Best, in good faith, to bring and
have the body of said Benedict before your
Honor at the time and place last aforesaid,
as by the said writ commanded, and to that
end I, the said WiUiam F. Best, had made
and annexed to said writ, my return there
to, which return comprised a copy of the
order under which said Benedict was held
by me, and a statement that it was by virtue
of that alone that I held him, and that I
produced the body of said Benedict before
your Honor, as by the said writ command
ed. That this morning, at about the hour
of half-past nine o'clock, in the office of
Edward I. Chase, the Marshal of the United
States for the Northern District of New
York, in Buffalo, the said Edward I. Chase,
asked me to take and look at said writ and
return. That not suspecting bad faith on
his part, and believing that he would return
the same to me, and at the suggestion of
Asher P. Nichols, my counsel, I handed the
same to him. That after examining the
same he said that it was his writ and re
fused to return it to me. That thereupon,
I made a formal demand on him for the
same, which demand he refused to comply
with. That having no writ, I cannot have
here the said writ or make a formal return
thereto, as by the said writ I was com
manded ; nor can I have the body of the
said Judson D. Benedict here as command
ed by said writ for the reasons above stated.
Dated, September 18th, 1862.
(Signed) WILLIAM F. BEST.
Northern District of New York — ss.
William F. Best being sworn, says he is
the person described in and who signed the
within statement; that he has heard the
same read and knows the contents thereof,
and the same is in all respects true, as he
verily believes.
WILLIAM F. BEST.

Subscribed and sworn, this 18th day of Sep
tember, 1862, before me,
N. K. Hall, U. S. District Judge.

United States of America,
Northern District op New York, J- ss:
County op Erik, .
Albert Sawin being duly sworn, says he
is counsel for Judson D. Benedict, named
in a writ of habeas corpus, a copy of which
is hereto annexed, and also a copy of'orig-
inal order of allowance endorsed thereon.
That on the sixteenth day of September
inst,, he served the said writ of habeas cor
pus with said copy order upon Albert G.
Stevens, the Deputy Marshal therein named,
by delivering a copy of the same and of
said order of allowance so endorsed person
ally to said Stevens personally, at the City
of "Buffalo, %nd at the same time showing .
to him the said original writ and said orig
inal order endorsed thereon. That on the
same day he delivered to said William -F.
Best, ke^er of the common jail of the
County of Erie, personally, said original
writ, with said order endorsed thereon. —
That this morning about the hour of eight
o'clock, deponent paid to said William F.
Best two dollars and fifty cents, being the
fees named by him allowed by law for the
return to and execution of said writ, who
received the same.
That on the morning of the I7th day of
September inst., deponent was present at
an interview between said Stevens and said
Best, in which said Stevens told said Best
he had received instructions from the War
Department to resist said writ, and he, said
Stevens, directed said Best not to obey it,
such being the order of the War DftJart-
ment. Deponent said, "of course Mr. Best
will obey the writ and bring Benedict before
Judge Hall." Said Stevens said he would
have a force to prevent it. Deponent said,
" Mr. Best, I will be present; to-morrow mOrn-
ing as one to assist you in obeying said writ.
though at the peril of being shot." Said
Stevens replied, "then you will be shot, and
I will report you to the War Department."
Deponent further says, that this forenoon
he enquired of said Stevens what fees he
demanded for making return to said writ of
habeas corpus, and informed him he, depo-

IN BENEDICT HABEAiS COBPUS CASE.

31

nent, was ready to pay the same ; the only
reply he made was, " no matter."
ALBERT SAWIN.
Sworn and subscribed this )
18th day of September, 1862. C
A. P. Nichols, U. S. Com'r.

To the Hon. Nathan K. Hall, District Judge
OP the United, States for the Northern
District of New York:
The annexed paper was delivered to me.
It purports to be a writ of habeas corpus.
It is not under the seal of the Court; the
signature to the same is not the hand writ
ing of the Clerk, nor is the signature to
the allowance endorsed on the same in the
hand writing of your Honor, nor is it cer
tified to be a copy of an original process.
I understand that an original writ was
served upon and is in the hands of William
F. Best, one of the prisoners [persons?] to
whom the same is directed ; the said Best
refuses to allow me to have said writ, or
recognise any authority on my part to the
prisoner therein named, or to allow me to
have the custody and control of the pris
oner, and claims that he alone should make
- return to said writ.
I would further state that said prisoner
was legally arrested by me by authority of
the President of the United States, and
delivered by me in custody under such
authority in the jail of Erie County where
I placed him for safe keeping merely, and
where he now is, and that I still have law
ful right to said prisoner, but the jailor of
said Erie County jail on demand of said
prisoner this day made by me of him for
said prisoner refused to deliver said pris
oner to me as he rightfully and lawfully
Fhould do. I further state that no return
made by said Best to said writ can present
the true facts of the case, or the cause of
the detention of said prisoner.
ALBERT G. STEVENS,
U. S. Deputy Marshal.

ON HABEAS CORPUS,
In the matter op Judson D. Benedict:
It appearing to my satisfaction, by the
affidavit of William F. Best, that Edward
I. Chase,, now present, has received from

him, on request, and detained from him
against his will, the writ of habeas corpus
heretofore issued in this matter, (and direct
ed and delivered to said William F. Best,)
and thereby prevented his obedience to said
writ; I hereby order and direct the said
Edward I. Chase to deliver the said writ to
the said Best, or to the undersigned, or show
cause, before me. at the U. S. Court Room
in Buffalo, at half-past two o'clock this
afternoon, why he shall not be committed
for a contempt.
N. K. HALL,
U. S. Dist. Judge.
Sept. 18, 1862.

Albert G. Stevens, the Deputy Marshal,
was made a party as well as the jailor, who
had his actual custody. The return of Ste
vens is a curiosity. The object of making
Stevens a party was to enable him to pro
duce any evidence showing Benedict had
done anything worthy of bonds. He de
clined to do this. Marshals Chase and
Stevens had dec'ared beforehand that jailor
Best should not take Benedict from the jail
to Judge Hall's court room, and they would
use force to prevent it.
Accordingly in the absence of the Colo
nel of the Regiment, Marshal Chase pro
cured from Camp Morgan a company of
soldiers, placed them in the vicinity of the
jail for the purpose of executing that threat.
The friends of jailor Best were likewise in
the vicinity in sufficient numbers to enable
him to obey the writ, no matter how much
force the Marshal might have obtained. —
However, without opposition, the loyal jailor
was permitted to obey the writ;
[From Buffalo Courier, Sept. 19th.]
U. S. District Court — Judge Hall, presiding.
September 18th.
The case of the writ of habeas corpus
commanding A. G. Stevens, Deputy U. S.
Marshal, and Wm. F. Best, jailor of Erie ,
county, to produce the body of Rev. Judson
D. Benedict, in court, was before the court.
A. Sawin made a statement of the ser
vice of the writ of habeas corpus upon the
jailor of the Erie County Jail.
A. P. Nichols, Esq., the attorney for the
jailor, made a return stating that the jailor

32-

DOCUMENTS' AND STATEMENT OF FACTS

hadiihftflded, the-writof Aflt&eas corpus to
U. S.. Marshal Chase, by the advice of his
attorney, ian4 that Mr. Chase had refused
to return it to him, and that it was impos
sible to return either the writ or the pris
oner. U. S. Marshal Chase claimed that the
prisoner was in his custody, having been
arrested by ordfer of the President, through
thef Secretary of, War; that the jailor -R'as
simply a machine, and- that he was the pro
per custodian of the prisoner..
This was the position taken by U. S.
District Attorney Dart.
Mr. Nichols claimed that .the prisoner
was now held by the jailor by virtue of the
writ of habeas corpus, and /that he could
noti surrender him until that writ was va
cated. .After a somewhat extended, argument.
Judge Hall made an order that Marshal
Chase, return ;the writ to ¦ the jailor ; and
that, he make a return at 2^io'cloc]i, ifec.
The Court adjourned till that: hour.
During the recess of the Court, Marshal
Chase, offered to, dehver up the writ of
habeas.corpus, wljich he had withheld from
Jailor Best, on the condition. that the jailor
would deliver the prisoner into his custody'.
This the jailor refused ; and before 2 o'clock
Marshal ¦ Chase surrendered the ¦ writ, evi-
dentiy not; wishing to. disobey the order of
the Court, , The jailor now being in pos-
Kes.*ion of tbe writ, took the prisoner, in
company with .Sheriff Best, and escorted
hip) to the Court Room, where he was cor
dially greeted hy many of his friends from
the country. AFrERtlOON SESSION  2-J- o'cLOOK.
U. S. Marshal Chase came into Court
and delivered to the Judge a return to the
fi\\i6i habeas corpus, setting forth by what
autjiority his Deputy had arrested the pris
oner, and that the writ of habeas corpus
having been suspended, and he ordered to
resist any attempt to execute it, he could
not obey the order of the Court. This we
understood to be the substance of tbe re-
tifln. Marshal Chase I'equested the jailor to
give him a copy of theiovder of the Court
compelling him 'to return the writ.

Tha Judge said a copy would be fur
nished him.
A. P. Nichols, Esq.^ then made the proper
return to the writ, and produced Rev. J^D-
Benedict in Court.
U. S. District Attorn^ Dart said, that a
turnkey had, in some way, obtained posses
sion of a United States prisoner, arrested
by order of the President of the United
States, through the Secretary of War, for
uttering seditious language, , or language
calculated to weaken the confidence of the
people in the Government. In such cases,
.^he President has suspended, the writ of
habeas corpus, and ordened that; forcible re
sistance be made to its execution. He hoped
that the occasion for arrests under this order
had ceased, and that there would be no con
flict of jurisdiction in; this case. He asked
the suspension of proceedings until Tuesday
next, trusting that the matter might be satis
factorily arranged before, that time.
Albert Sawin opposed. the postponement.
It was important that the great question of
personal liberty in connection with the arbi
trary arrests should be disposed of by a
legal tribunal.
Judge Hall said the real question at issue
was, whether the President had the power
to, suspend the writ of habeas corpus, and
if this was the question to be argued the
time asked was not unreasonable. He was
anxious that the matter should be fairly
canvassed, and a conflict of authority avoid
ed. He would, therefore, grant the request
of the United States District Attorney, and
adjourned the case to Tuesday next, at 11
A. M., meanwhile the prisoner to remain in
the custody of the jailor to be again pro
duced in court at the time named.
The District Attorney desired the Judge
simply to remand the prisoner, without
naming the custodian.
Mr. Sawin opposed this. The Marshal
wished to gain possession of the prisoner
for the purpose of placing him in military
custody, and beyond the jurisdiction o"f this
Court. The rights of the prisoner were in
jeopardy, and he appealed to the protection
of the Court.
A. P. Nichols, Esq., askfed the Court to
make an order stating by what authority
the' jailor held the prisoner whether by or-

m BENEDICT HABEAS COBPUB CASE.

38

der of the Marshal, or under, the writ of
habeas corpus and the order oi' this Court.
He wished the duty and the authority of
the jailor cleariy defined.
Mr. Dart desired that the Court would
make no such order, but simply remand the
prisoner. He thought the Court ought to
have confidence in the Marshals, and believe
they would respect the Court.
Judge Hall said the custody of the pris
oner will continue Vvith the jailor as it is
now. The prisoner is now held by virtue
of the writ of habeas corpus. He is re
moved from the custody of the marshal or
deputy marehals, and neither of them can
interfere with him until the hearing and
determination of' this writ. i
Marshal > Chase wished to know whether
his authority in this case was at an end.
iThe Jadge rephed that he had as much
and no more to do with it than any other
citizen. If he, or any other man, knew of
any crime the prisoner had committed, it
was his duty to inform against him. thait
he might be punished according' to law. It
was especially the duly of the U. S. District
Attorney to ascertain tbe facts and proceed
against him, if he had been guilty of any
violation of the laws of the land.
The following is a copy Of the order of
Judge Hall in the case : — ' ¦
"ON HABEAS CORPUS,
I.V the MATTER OF JuDSOS D. BENEDICT:
The. said Judson D. Benedict having this
day been brought betbre.me by W. F. Best,
the keeper of the common jail of the coun
ty of Erie, in obedience to the annexed
writ of habeas corpus, and the hearing un
der the; said writ, and the return made
thereto,. having, at the request of Hon.
Wm. A. Dart, U. 8. District Attorney,
be.en, adjourned until Tuesday, the , 23d
day of September, at 11 o'clock in the fore
noon, it is hereby ordered, on motion, of the
cpunsijl for the defendant, that the said
Judson ,D, Benedict be and he is, hfl'eby, re
manded and committed to the custody of
Wm. F. Befit, as such jailoj-, to be kept and
detained., by hiro under the .authority of

such writ of habeas corpus and this order,
until the time to which said hearing iis so
adjourned; and that said Wm, F. Best pro
duce and bring the body of the >aid Judson
D. Benedict and' the said writ of habeas cor
pus befoie. the undersigned at the U, S.
Court Room in the City of Buffalo, on the
said 2Sd day of September inst, at 11
o'clock A. M, then and there to do and
receive what shalliithen and there be con
sidered in that behalf, i;
N. K.,HALL,
U. S. District Judge.
S,ept. 18, 1862."
The Marshal betrayed some uneasiness, at
the decisjou of the Judge, but remarked
that he was a, loyal man, and.should respect
the Court. .
After the necessary papers were made
out. Rev. Mr. Benedict walked, in company
with Mr. Best, back to his lapartments at
the jail. It was rumored that the Marshal
would attempt the rescue of the prisoner,
but this was unfounded.
It is understood, that the 'Marshal and
District., Attorney will send a statement of
the facts and copies of the. papers to Wash
ington, and await instruetionsfrom the War
Department or the President. Meanwhile
the prisoner is in. the custody of the highest
Court known to the people of the United
States. (*) ; .

[From tbe Buffalo C,o^ri?r, Sept. 24.] ,
U. S. DisTHiicT Court, ¦}
Buffalo„Sept.23, 1862. J
As it was extensively known fhat the
hearing, in the case of Eev. Judson p. Ben-
edjcf, arrested foi- alleged seditious language,
and taken out of the custody of the United
States Marshals by a writ (4,habeas corpus,
would take place at 11. o'clock this nioi-'ning,
the courti'odm -vvas well filled'wit'h residents
of the t6wns where the prisoiiei' is well
known. We noticed citizens fro fti' half a
dozen ditt'erent towns, and Sorne twenty
ladies from 'the country were-'fil'so present,
all manifesting the most intense interest in
the) disposition- of the case. These people
testify to their highsregai'difor the "Elder,"
as they call him/ and tfeel indignant that he

(*) This is, of course, a mistake. Tiie -writ of habeas I United States, biitby JpDGU H'iii,, as'jndge of tlie V. &,
corpus was ifisuecl;' not by the' Supreme Court of the | District'Court, I ¦ . ..¦..;,. t ... ^ ,y.
(5)

34

DOCUMENTS AND STATEMENT OF FACTS.

should be subjected ev'en to suspicion of his
loyalty. ¦
Shortly before 11 o'clock, the prisoner
appeared in Court, in tompany with the
jailor, Wm. F. Best. - A. P. Nichols, Esq.j
attorney for the jailor, handed up the
original writ of habeas corpus, -with the
order of the Judge, remanding the prisoner
to jail, engrossed lipon it.
I'he Court said he did not understand
that any demurrer had been made to the
writ as returned, or issue taken on the facts
stated in the return.
A. Sawin claimed that the return as made
stated in what manner the prisoner was
arrested and was held, suflSciently clearly to
enable the Court to determine that the arrest
is illegal, and that the prisoner should be
discharged. The Court inquired if the United States
District Attorney was to be present, and
directed the officer of the Court to inquire
if the District Attorney desired to be heard
in this case.
Marshal Chase soon appeared in Court,
and held conversation with Ju<dge Hall
which was not audible.
After the close of the interview, the Court
announced that the United States ^ District
Attorney did not propose to appear or to
make any further statements to the Court
or furnish any proofs in the case; that
neither the Marshal or his'deputy, Stevens,
would appear ; and that, so far as they were
concerned, the case was left to the Court in
its present condition.
The Court said that the parties might
file such statements and papers as' they saw
fit, and the case would come up for further
consideration. Thereupon, Mr. Sawin p^roposed to inter
pose a demurrer to the return as made, and
thereby present the question of the legahtyf
of the arrest and imprisonnient.
Mr. Sawin proceeded to draw up the
demurrer, and having completed the paper,
read it.
Mr. Sawin said he had prepared certain
propositions and a form of order in this
case which he wished to submit.
The Court desired to say to any person and
to all persons present, that if they knew of

any crime that the prisoner had committed
against the laws of the United States, or any
cause of arrest, other than that set forth iri
the return, they should make it known. —
He had prepared an opinion in the case,
embodying its legal bearings which he
should publish as his justification. He
should make an order discharging the
prisoner from arrest, no cause hai'ing been
fhoivn why he should be detained. The
following is a copy of his order:
"0^f HABKAS CORPUS,
In the matteb, OF Judson D. Benedict.
The said Judson D. Benedict having this
day been again brought before me in pur
suance of the annexed writ of habeas corpus
and order, and the counsel of the said peti
tioner having filed a demurrer to the return
to the said writ made by W. F. Best, jailor,
and to the statement heretofore made by
A. G. Stevens, deputy marshal, and (no one
appearing to oppose the discharge,) I having
proceeded ex parte to hear and consider
the casii as now presented, and determined
that no legal cause for the arrest, imprisonT
ment and detention of the said Benedict is
shown ,by said return or said statement and
return, and having invited all persons present
to make proof, if any could be made, that
the said Benedict had been guilty of any
offense against the laws of the United
States, or was subject to arrest for any
cause other than that appearing on said
return, and no such proof being offered, I
do hereby order amd dii-ect that the said
Judson D. Benedict be and he is hereby
discharged from custody.
N. K. HALL,
' U. S. District Jtidge."
While a copy of this order was being
made, the reporter of the Courier had an
interview with Marshal Chase, in which he
desired him to state that previous to the
issuing of the writ of habeas corpus by Judge
Hall, he had written to the War Department
recommending the release of Mr. Benedict,
and that he would have been released before
this, had it not been for the attempt of Mr.
Sawin and others to raise an issue with the

IN BENEDICT HABEAS OOBPUS CASK.

35

United States Government. We make the
st^ement for the benefit of the Marshal.
It was now evident that Mr, Benedict,
who had been discharged from arrest by the
order of the highest Court known to the
Constitution, (*) was again to be arrested by
the United Slates Marshals, althoagh his
release had been recommended by Mr.
Chase. Several members of the police force
were seen to enter and dispose themselves
about the room, while Marshal Chase and
Deputy Tyler, of Lockport, sought positions
near the now free citizen of the United
States, standing in the Temple of Justice,
and waiting for a copy of the proclamation
of emancipation just issued by the .Judge.
As soon as the copy of the order was
handed him, officer Tyler was observed to
speak to the "Elder," and the Reverend
gentlemen, with his free papers in his hand,
demanded to be shown the authority for his
arrest. He said he did not propose to resist
the arrest, but wished to know by whose
orders he was seized. We did not hear the
reply, but are informed that-it was " We
wUl show you the authority when we get
you where we want you." He was hurried,
Marshal Chase on one side of him and
officer Tyler on the other, down the stairs
and to a carriage in waiting, in which
deputy marshal Stevens sat. A large crowd
gathered about the carriage, aim much
feeling was exhibited, but no attempt was
made to rescue the prisoner, The carriage
was driven off) Marshal. Chase on the box
with the driver, and the prisoner inside with
oflBcers Tyler and Stevens. It is under
stood that this was done by special orders
from the War Department, (f )
Judge "Hall soon after, on the application
of Mr. Sawin, issued another writ of habeas
corpus, addressed to Marshal Chase, which
was served upon him at the depot as he
w,as about leaving for Lockport. We are
informed that he said that the prisoner was
not in his custody, but was on his way to
Washington. The following is a copy, of petition, with
the proof of serving of said -writ:

"To THK Hon. Nathan K. Hall, United Statk.s
DiSTBjOT Judge fob the Northjsrn Disteict
OF Ne-w York :
The Petition of Albert Sawin of the City
of Bhffalo, counsellor at law, shows that
heretofore proceedings were instituted before
your Honor, in behalf of Judson D. Bene-^
diet, then confined in the jail of the Coupty
of Erie, the jailor of which was and is Wil
liam F. Best, under the direction^ of Albert
G. Stevens, then and now United States
Deputy Marshal. — and such proceedings
were had before your Honor, a writ of Ha
beas Corpus was issued and this morning
said imprisonment was declared illegal by
your Honor, and an order was made and
delivered for his discharge.
That after such order was delivered and
said Benedict was discharged from imprison
ment, the same having all been done in the
United States Court Room, your petitioner
walked in company with said Benedict, from
said Court Room down to the outer steps
of said building, and Edward I. Chase, who
is the United States Marshal for the North
ern District of New York, took hold of the
arni of the said Benedict, and said in sub
stance to him, "I arrest you by authority Qf
the Secretary of War," hurried him, with
the aid of divers persons, into a carriage
di'awn by two horses, and drove away with
said Benedict, said Chase leaving said
Carriage after riding a short distance.
Your petitioner, at the time said Chase
first sVrested said Benedict, and at said '
Benedict's request, enquired by virtue of
what process said arrest was made, and re
quested a copy thereof. Said Chase in
formed your petitioner that he would soon
let him, know, and shortly afterwards he
informed your petitioner said arrest was
made by virtueiiof a telegraphic dispateh
from the Secretary of War, the purport of
which was that the writ of habeas corpus
should be resisted, and in case he was dis
charged to arrest said Benedict, and that
was the sole authority of him, said Marshal
Chase, for sai4 arrest, and that he was now
in his custody, and that any writ of habeas
corpus could be served on him.

(*) This was, of course, a misapprehension. The dis- 1 Conrt of the United States, aa the erroneous statement
charge was ordered by JrDGB Hah, as the United States of the reporter of the Courier wtild seem to intimate.
District Jttdge of this district, and not by tha Supreme I '(t) See Note X Appendix.

36

DOCUMENTS AND STATEMENT OF FACTS

Your 'petitioner is further informed and
believes, that said carriage, containing, said
Benedict, was driven on the road to Lock-
port; and said Albei't G.Stevens was'in said
cari'iage with said Benedict,' bn the f:oad to
Lockport, about three miles from the Federal
G'6\\rt ROoni building.
That said Marshal Chase was in and
about said Fed&al Court' Room at, the time
the order was publicly announced by your
Honor, made by. you in the niatter dis
charging said Benedict from said imprison-
meht. ' '' ' .
Your petitioner further alleges, that he
is informed and believes that said Benedict
was so arrested for no ,6ther cause. Or order,
or process than that above, stated; and that
he was not'ai''re,«ted, an'(i is .notuow restrained
of'liis. liberty by virtue of any judgment,
process, decree, or order of any coui't or
judge of civil or criminal jurisdictioii.
Your [Petitioner alleges such arrest is
illegal, inashniich as any order made' by the
Secretary of War,, by telegraph, or other
wise, is void. Martial law does not prevail,
and has ,not been declared iti the County Of
Erie; the provisions Of the Federal Consti
tution, for the, protection of the personal
liberty of the citizen, are in full forc^;' and
said Stevens, and said Marshal "Chase, have
been guilty of a gross violation of law, and
of a contempt of the judicial power, and^of
the authority of your Honor, in their dis
obedience of the order dischargina said
Benedict, made by your Honor. ' ' ' '''
Wherefore, your petitionei- prays; said
Chase, and' said S'tevetis'.'.rnay be piinished
for such Contempt; and" in behalf of 'said
Benedict,* your petilfioner prays, that your
Honor will grant li writ Of /jaSedscor;!)** to
be directed to 'said Edward 1! Chase 'com-
riiaiidiiig hirri'to ;prod'u(!fc, before yOuV
Honor, 'at such time as may be named, the
body of said Benedict, to, the end that du^
inquiry riiay be made of the cause' pf such
imprisonment, ind he inay' he discharged
therefrom. " s li
(Signed,) ALBER^T SAWIN
United, States .of Amus-jca,
ifOBIHERN DiSTElCr OF Nkw, Yoek,
Countv OF JSkIe, ;
Albert Sawin being diily sworn, says hS

has reM the foregoing petition, signed ¦ by
him, and knows the contents thereof, and
the same is triie of his own knowledge, ex
cept as to the matters . therein stated > on
information and belief, aOd as to those mat
ters, he believes it to be true.
ALBERT SAWIN.
8-w-orn and, su^^cribed, this 23d day ?
ofSeptember, 1862, before me, ) .
^_^ I^EO. GpllHAM,
, United States Com'r.
; (Endorsed.)
IfoETHEEX Disteict «F Nk-w Yoek:
On the within petitiofl, and affidavit, J
allow .a \yrit of habeas corpus as prayed, for
tp, bring up the, hody of .Judson p. Bepe-
,4ict,,tQ, be directed to Efi>'^Ar,4'';I. Chase,
I United States Marshal, anS, returnable, be
fore me, on the 2^th of, September inst., at
10 pVlock 4. M-> ^t the United States Court
'Room, in Buffalo. The Clerk will prepare
the writ-
'Sept. 22, 1862. '.
• . , N.K. HALL,
r. ,S. Dist, Judge, N. Dist., of iTewTork.

UxJTED States of Amebica,
NOETHKKX DiSTEIOT OP Nkw YOBK,

I Harvey B. Ransom being duly swo'rti,'
says: that he is well' acquainted with Ed-
'¦ ward' I. Chase, named in annexed copy writ
of habeas corpus, ' That he served upon
isai4 Chase, at the City of. Buffalo, on the
23d day of September itist., at about the
hour of five o'elbck P. M. of that day, an
original writ of. habeas corpus, with the
ori'gihal order of allowance signed by Judge
Hall, endorsed thereon, copies of which writ
and order are hereto annexed, by delivering
tbe same at tha time and place aforesaid to
said Chase personally. That deponent and
said Chase went yesterday afternoon on sam^
train of cars to Lockport. Deponent saw
after his arrival within iiamed Benedidt in
frint of said' Chase's office, at Lockpdrt,
said Chase, as deponent was informed',
being iu his office at the time.
. jiARVEY B. RANSOM. .;,
Sworu and subscribed before me this 24th day
of September, 1869. A. P. Nichols, TJ. S. Com'i.

IN BENEDICT HABEAS COEPUS CASE.

a7

, I ; PtO!^ the Bijfl'alo ,qouriet, iSopt. ,26th, : ,
"At 10 o'clock, this, (Thursdayr) morning,
(he second writ oi' habeas corpus, issued by
Judge Hall, iiiithe case of Judson D. Bene
dict, was retui-nfjble. The following is the
return, made by Marshal Chase to the writ:;
"To, the Hon. Nathan E. Hall, District
Judge of the United Stateafpr the Northern
District of New York : •
The annexed writ was delivered to me
between five and six o'clock in the afternoon
of the 23d -day of September la.st. Before
that time and about noon of that day Judson
D. Benedict, the person named in said writ,
had been arrested by me for disloyal prac
tice, by order of the Presidentof the United
States, and put' in charge of Daniel O;
Tucker, with direction to convey him. to the
Old Capitol Prison in the City of Wash
ington, and said Tucker immediately left
Buffalo with the prisoner for that purpose.
Under general ordere made by the Presi
dent, through the War Department, bearing
date the 8th day of August, 1 863, said
Benedict had been, on September 2d, 1862,
ai*rested by triy deputy, A. G. Stevens, for
such disloyal practice, and said deputy was
ordered by the War Department to detain
him in ^custody until the further order of
said department. For safe' keeping said
Benedict Was' removed from Fort Porter to
the jail of Erie ckJUnty.
Afterwards, as is said, a writ of habeas
corpus, directed to said Stevens and Wil
liam F. Best, the jailor, was delivered to said
jailor. The War Department was informed
by said Stevens of the allowance of said writ,
and said Stevens was directed by said De
partment not to regard said writ. But said
William F. I^est, the jailor, refiise^ to allow
me or my deplity, Mr. Stevens, to have any
control of the prisoner, or of the writ, and
avowed his intention to rnake return to said
writ, and produce the prisoner before your
Honor. I informed the War Department of such
refusal and avowal. In answer I received
an order made by the Secretary of War,
saying, in substance, "Your deputy, Mr.
Stevens, was directed to disregard the writ
of habeas corpus. If Stevens or the jailor
permits Benedict to be discharged on habeas

corpus, arrest him again and convey him to
the Old Capitol Prison, atWashington."
The original order was delivered, by me
to Mr. Tucker, into whose charge I delivered
the prisoner, and I have no perfect copy.—
The above is a substantial copy,, and iu all
essential particulars is correct.
In pursuance of such order, after said
Benedict was, on the 23d inst., discharged
from the custody of said Best, • aind said
Benedict had left the U. S. Court Room, I
arrested him and put him in charge'of Mi-i
Tucker, with the directions above stated. '
A formidable insurrection and rebellion
is, as is well known, now in progress in this
country,- - and the writ of habeas corpus
suspended, and the President of the United
States, by one of the orders above tefei'red
to, made on the 8th of August, -declared the
same to be suspended; in case of disloyal
practices. I would also -refer your Honor
to the Proclamation of the President of the
United States of the ;24th of Sept., inst. '
I, theiefore, understand, that the above-
arrests are military arrests, in relation to
which the writ of habeas corpus is sus-'
penned, i
. I have,, however, out of respect to your
Honor, and the judicial authority of the
country, thought it my duty to return to
you the annexed writ o{ habeas corpiw, and
make the foregoing statement." '¦¦¦
ill Very: respeotfuUv,
EDWARD I. CHASE,!
U. S. Marshal.
Dated iho25th day of September, A. D. l86S.
Mr. Sawin [Cloyed, after reading the ,proof
of service of the writ, and the aboy^ Statfe-
ment of Marshal Chase, that an order be
made for the discharge of Judson D. Bene
dict from, custody, on tte ground that Jiis
Honor, from the previous proceedings .as
well as the present, knew his imprisonment
was illegal. Mr. Sawin had no doubt such
order would be obeyed by all loyal officers,
military or civil, having his custody, inas
much as the decrees and orders of the
Judicial branch of the Government were
binding not only upon every individual, but
every officer of that Government, even the
I President himself. .

38.

DOCUMENTS AND STATEMENT OF PACTS

Mr, Sawin alsoi moved that an order be
made that Marshal Chase show cause, on
some day, why he should not be punished
tor disobedience of the writ, especially as it
appears by his statement that he had directed
officer Tucker to take Benedict to Wash
ington, and that his pretence that the
prisoner was not in his custody is proved to
be false.
He said the petition, verified by the oath
of the p^titionfer, shows that Marshal Chase
asserted and informed the counsel for Bene
dict, after he had been put in the carriage,
that he . (Benedict) was -in his (Chase's)
custody, and that the writ of habeas corpus
might 1)0 served on him; that the writ was
so served about five o'clock in the afternoon
of the i2 3d inst., and the same man who
served the writ accompanied Mr. Chase to
Lockport, and saw Mr. Benedict in front of
Chase's office, Chase being inside. It is,
therefore, proved that Mr. Chase's state
ment is false in the respect that he (Chase)
had not the control of Benedict, after the
service of the writ. - And it further appears
that after the service of the writ, he must
have removed the prisoner from Lockport
for the express purpose of preventing the
order for his discharge from becoming op
erative. ¦ The Judge said that, for the present, he
would not make the first order moved for,
as it Could not hasten the release of the
prisoner from illegal custody, and that
owih'gito the absence of Marshal Chase, for
which some explanation had been made by
his deputy, Mr. Stevens, he would postpone
the further hearing of the case until Tues
day of next Week, to which time the Court
stood adjourned."

I submit this narrative without note or
comment, to the people of this State, and

especially to the bar, to enable them better to
determine what action is necessary to ward
off a threatened military despotism. '
I give no advice, but being thoroughly
convinced that there cannot be found twenty
real disloyal persons among the fourteen
thousand voters residing within the County
of Erie; that there is no military necessity
for declaring or executing martial law in
this County or Sute; that it has not been
constitutionally declared and is not now
even in force ; that the laws are not here
silent, but alive and speaking; that the
orders and decrees of Courts upon all judi
cial questions of which they have jurisdic
tion in this locality are binding until reversed,
upon Marshals, Cabinet Officers, the Gov
ernment, and the President, for myself, I
propose to abide by the principles contained
in the opinion of Judge Hall, help enforce
obedience to his order until reversed, and
resist by all legal ways any arrest in the
City of Buffalo that can not be justified by
the Cpn stitution and the laws.
At the s^me time I believe the acts of
our nttilitary commanders or provost m ar-
shals at St. Louis, New Orleans and ^palti-
more, to be entirely justifiable, jand were
there any such dangerous conspirators
against the Federal Government in this
county, as is well known existsin those cities,
neither as counsel or citizen, would 1 object
to the establishment of a like despotic mil
itary government in this countv.
ALBERT 'SAWIN.
Buffalo, Sept. 28, 1862.

P. S. — As soon as the above final de
cision was made, the son of Mr. Benedict
requested Marshal Chase to write a state-,
ment of it ,to the Secretary of War, and
recommend his release. The Marshal re
fused so to do.

APPENDIX.

3SrOTE B.

This portion of the order of the Secretary
of War, which declares his purpose to pro
vide for the trial of citizens of the United
States, not in the military or naval service,
by military commission, for offences not
known to the laws — that is for acts which
have not been declared criininal by any act
of Congress — ^is so palpably in violation of
more than one provision of the Constitution
of the United States, that little more than
a bare statement of the fact seems to be
necessary. The passage of "Expost-facto"^'':)
laws is forbidden by the Cohstitutioh — but
the trial by military commission, and the
infliction of unauthorized and illegal punish
ment, for an act which Congress has not
declared to be a crime, would produce all
the evils thus provided against, without even
the security afforded by ex post-facto legis
lation: — trial by jury is secured by the Con
stitution to all citizens not in the military
and naval service, but this mode of trial
takes it away : — the judicial authority of the
Government is by the Constitution vested
in permanent courts, established by Congress
and held by judges appointed with the
advice and consent of the Senate — while
this order contemplates their trial by a mili-
taiy commission, appointed by the President
or Secretary of War : — the constitution and
acts of Congress provide that all such citi
zens shall oSy be tried after indictment by
a grand jury, and shall enjoy the right to
a speedy and public trial by an impartial
jury of the state or district in which the
offence shall have been committed: — but
this order proposes to dispense with that
form of proceeding, and to violate that right ;

and also, to establish an extraordinary tribu
nal, and a new form of proceeding, without
authority of law. For the constitutional
provisions referred to, see the extracts from
the constitution contained in this note, and
in note^(f) ante. p. 9.
The advantages and importance of trial
by jury, are forcibly stated by DeLolme, (a
native of Geneva, iri Switzerland, and a Tery
celebrated and discriminating Writer,) in his
commentaries on the Constitution of Eng
land, (Stephens' Db Lolmb, vol 2, p. 799,)
as follows : " It constitutes the strongest se
curity to the liberties of the people that
human sagacity can devise; for, in effect, it
confides the keeping and guardianship of
their liberties to those whose interests it is
to preserve them inviolable; and any tempt
ation to misapply so great atr authority for
unworthy purposes, which might siVay a
permanent tribunal, can have no influence
when entrusted to the mass of the people,
to be exercised by particular itidividuals but
occasionally." And Mr. Webster declared, (Webster's
Works, vol. 4, p. 3U4,) "There can ^be no
better tribunal than the peojile brought to
gether in the jury box, under the 'solemn
sanction of an oath, and acting under the
instructions of enlightened judges." Arid
he added — " I am attached tp this mode of
trial and will never consent to give it up."
The 3d Article Of the Constitution pro
vides, (Sec. 1,) that "The judicial power
of the United States shall be vested in One
Supreme Court, and in such inferior courts
as the congress may, from time, ordain and
establish. The judges.both of the Supreme

OMc post-facto laws, are laws which makOi'an act com
mitted before the passage -of the law, and -not then
criminal, punishable as a crime; or which renders an
act punishable in a manner in which it was not punish

able when committed. 8 Dallas' Eep', 8SC; '8 Cranch's
Eep., S7; The Federalist, No. 84; 1 Kent's Com., 409
1 Blackstone's Com., 46.

40

APPENDIX.

and inferior courts, shall hold their offices
during good behavior; and shall, at stated
times, receive for their services, a compen
sation, which shall not be diminished durius
their continuance in office ;" ^d (Sec ''2,)—
" The judicial power shall extend to all
cases, in law and equity, arising under this
Constitution, the laws of the United States
and treaties made, or which shall be made,
under their authority," &c„ and, " the trial
of all crimes, except in cases of impeach
ment, shall be by jury; ,fn<l such trij^l shall
tje held i„n the State where the said criines
shall have been committed ;, but when not
committed, withiii any State, the trial shall
be at ,'such place or places as the Congress
niay, by lavv,' have directed."
These provisions,j,3,nd th/s- other provis
ions of the 3d Article of the. Constitution,
prove beyond controversy, that it was not
the.intention of the framers of the Consti
tution to allow tbe Secretary of War to
estalslish a department, court, or tribunal at
the se^t of government^rruuder th,e: name
of a.Juflge Advocate, or Mjlit^'y Cominjg;
sion, — wjiicb, should, ,lia,ve jinlinaited control
over .the libei^ties' of the; ei.tizen., , They in
tended that all authprityfov t^Jiet"^! ^r4
punishnient of persons .pcpufpd. ,pf crime,
should be vested in independent judges .and
impartial jurors; — jurors drawn from ,\he
people, and judges not rpnpovable, by ,the
Executive, — ^judges whose sals^ries ,co,uld,npt
even be reduqed, (in order; to destroy their
independence,) during their continuance in
officOf The patriots and s^ges of the rev
olution, — to wlipse pfoJ'ts and saci'ifices.we
are,,3ndebted,fpi''the;QpnstitutiQU and the|
amendments tbjer'eto. (adopted in order to
afford additioiiiil guaranties , for, the .per-:
jspnal 'liberty of the-,, .citizen,) were well ac-
quaiinted with the Jiistory apd chaiiacter of
-the) English Constitution., T'hey were famil
jar with the history pf, the struggles, —
between arbitrary power .and constitutional
liberty, — which had. given to the people of
England that security to. their persons
which had been denied in the American
.9Qlpnies; — which denial was one of the
chief causes which led to the revolution.
They , understood the, vital force and. inesti
mable ' benefits of the' lawfj'of Etiglj»nd, —

and especiallvofthe law of habeas corpus— -
as administered by independent judges.
They bad doubtless read Db Lolme and
they desired to secure for themselves and
their posterity 'all the liberties and privi
leges whictfhe 'and other distinguished writ
ers have attributed to the just administra
tion of the laws by independent and per
manent judicial tribunals. See The Fed-
ei'alist^ Letters 78 to 84. In the la.st, it is
said, in reference lo the restraints imposed
by the Constitution of _the United ^t^tes
upon the legislative, power : — '.'The establish
ment, of the -writ of habeas corpus, the pro;
hibition of ex post facto laws,, and of titles
of nobility, to which vve have no corres
ponding provisions in our Constitution,''
(the old Constitution of .the State, of ifew
York is here referred to.) " are perhaps
greater securities tO liberty than any it con
tains. The creation of crimes after the
commission of the fact, or, in other words!
the subjecting of men ^o punishment for
things, which, when they were done, were
no breaches 'of law; and the practiqe'ot'
arbitrary imprisonments, have been in all
ages, the favorite ,and most formidable
instrurrierits'of t-y'ranny."
Db Lppib says, (Stephens' Dk- Lolmb,
vol. 2, p. 969,) ".If we cast oui eyes on tha
strict and universal impartiality with which
justice is admiuistered;in England we shall
soon become convinced that sotne onward
essential diffe^rence exists between the Eng
lish government and' those of other coun-
tiie.?.- and that its power is founded,, on
causes of a distinct nature. Individuals «f
the ,nio!.t exakid rank do not entertain so
much as the thought tp raise tho smallesl
direct, opppsitipn tp, the,' pperatiP!!i'<>f',''-te
law. The complaint of the meanest siib^
ject, it' preferred and; supported in the usual
way, immediately meets with a serious i-«-
gai'd. The oppressor pf the nnvit exlrin.,4vfi
influQ^ico, though in the midst of a trai,i|i of
retainers, nay, though in thd fullest fi^lii-
,pf his ciiroer and pride, and, surroundeil 'tiji
thousands of app]auders..and partizaiiSj.jii
¦stopped shprt.atthe sio-ht of th.? leu-;il, pat
per which is delivered into bis bunds; ami a
tip7Sl;aft'is sufficient to bring hi in away.-and
produce" liim before 'the bench. ' _"

APPENDIX.

41

Such is the greatness, and such is the
uninterrupted prevalence of the law ; such
is in short, the continuity of omnipotence,
of resistiess superiority, it exhibits, that the
extent of its effects at length erases to be a
subject of observation to the public.
Nor are great or wealthy men to seek
for redress or satisfaction of any kind, by

any other means than such as are open to
all; even the sovereign has bourid' hinaself
to resort to no other; and experience has
shown that he inay, without danger, trust
the protection of his person, arid of the
places of his residence, to the slow and
litigious assistance of the law."

l^TOTB F.

The following extracts from a New York
paper, of October 30, 1862, will show what
a much respected and ordinarily discreet
general officer of the Army of the United
States has considered "disloyal practices"
in a clergyman and others. If a veteran
general officer, of high character and pure
intentions — ^long accustomed to exercise
command over his own prejudices and pas
sions, as well as over the conduct and will
of o there — can be betrayed by his resent
ments into the indiscretion of thus exciting
arbitrary military power for the redress or
punishment of grievances personal to him
self, what may we not expect from the bad
temper and evil passions of inexperienced
petty officers and ignorant and irresponsible
policemen ?
Perhaps the correspondence between S.
M. L. Barlow, Esq., and Provost Marshal
General Draper, which immediately follows
the extract alluded to in the commencement
of this note, may afford a partial answer to
this inquiry :
"Important action of Gen.Wool — Union
Citizens of Baltimore Arrested and
sent down the Bay — Protest of Gov.
Bradford — President Lincoln orders
them to be Released — Rev. C. A.
Hat Released.
Baltimore, Oct, 29.
The loyal citizens arrested, last night were
'taken on board the steamer Baltimo.-e, on
which they proceeded down the bay to
Seven-foot Knoll, where they now lay at
anchor^ At the wharf there was much ex
citement. The city police, who were at the
boat, were recalled, but were forced to re
main by a cavalry force.

Gov. Bradford reached the wharf before
the departure of the boat, and was permitted
to have aninterview with Col. Rich, one of
the prisoners, who is an aid to the Governor.
On returning from the wharf the Governor
immediately telegraphed to- the President,
denouncing the arrest as an outrage, and
demanding an unconditional release.
Judge Bond also adjourned the Criminal
Court on account of the arrest of the clerk
of the court, Mr. Gardiner, and declared his
intention of proceeding to Washington to
see the President:
Dr. Armitage and Peter Sauerwein, a
committee appointed by the meeting last
night, have just returned from Washington.
They had an interview with the President,
who informed them that he had sent an
order to the War Department for their re
lease; but, up to the present hofir, (lOp. m.)
no such order is known to have, been re
ceived here. In, the meantime, Judge Bond
and Governor Bradford have gone to Wash
ington, and the prisoners are spending the
cold night on the steamboat in the bay.
There is much excitement and indignatidn
exhibited here on the subject.
We reprint from the Baftitbore papers
their accounts of the military arrests in that
city night before last. It will be noticed
that the version of the affair, given by the
Surt, differs veiy materially from that tele
graphed to us by our correspondent.
[From the Baltimore Sun.]
For several days past a petition has been
circulated in this city for signatures, making
representations to the President in deroga.
tion of the military capacity of Major Geri-
John E. Wool, of the Eighth Army Corps,

APPENDIX.

and requesting his removal. The fact was
made knowfn to Gen. Wool, and he at pnce
set about tp procure one of the petitions
with the signatures, ajjd 'succeeded in pos-
sesssing himself of one, ,to which a few
names had been affixed. He determined at
once to put a stop to proceedings which
were not only disrespectful but in insubor
dination to the mihtary authority. The
following is a copy of the memorial:
'The undersigned, loyal citizens of the city
of Baltimore and of the State of Maryland,
for themselves, and for nearly all others
within the State, who oppose the rebellion
and sustain the government, with 'their
whole heart, in its efforts to restore its full
authority, respectfully memorialize you with
the intention and for the pilrposeof causing
tbe transfer of Major General Wool from
the command of the Eighth A.rmy Corps,
or of so much thereof as is involved in his
militai-y control of this City and State. —
Gen. Wool is an old officer of the United
States Army, who has served his country
long, arid we do not wish publicly to assail
him for imbecility, for total lack of judg
ment and discretion, in the administration
of the affairs of his important office in these
localities. His great age almost precludes
the hope of vigorous, correct or better action
in counteracting the influences which are
.constantly brought to bear upon him, to
the detriment of the federal Union cause.
We respectfully suggest that the Presi
dent earnestly consider the precarious posi
tion of the loyal portion of this community,
and the questionable physical and mental
competency of General Wool, and spare
those who wish him well the mortification of
being. obliged to hear everywhere and at all
times the rude things, true though they be,
which are said of him.
iWe, therefore, beg leave to suggest his
removal to some other point, where he may
better subserve the great interests of the
country, and where, at the same time, may
be accorded to him the retirement which
his condition of mind requires.'
General Wool pronounces the whole o
the imputations false and groundless; and
having learned that secret meetings were
held by the parties who were instrumental

in the circulation pf the paper, concluded to
arrest, them. He learned that the meetings.
were held at Temperance Temple, on Gay
street, and detailed a squad of cavalry,
under command of Major Wilham P. Jones, ,
military provost marshal,, to arrest the prin
cipal parties. One of the' meetings took
place last night, and about half- past, pight,
o'clock Major Jones, with his squad, entered
the building and the room where the meet
ing was held. Thomas H. Gardiner, clerk
of the Criminal Court; Thomas Sewell, Jr.;
Thomas R. Rich, one of the aids of Gov.
Bradford; and Alexander D. Evans, were
taken into custody. They were conducted
to the office of Marshal yarnostrand, where ,.
there was some delay, after which they were
transferred to the Central police station,
and confined subject to the order of Gen. ,
Wool. Gen. Wool states that he has been
subject to false representations, to which he
will no longer submit, but will promptly
check all such proceedings. ^
[From the Baltimore American.]
Our readers will recollect that at the
Union mass meeting held in Monument
Square some months since, a committee
was appointed to inve-stigate alleged facts
in regard to the disloyalty of certain parties.
The Committee held several meetings, ex
amined a number of witnesses, and placed
the evidence they had gathered before tha.
President of the United States,, as they
were authprized by the resolution under
which they were appointed. Last evening
thd vice-presidents of the mass meeting were
called together at the Temperance Temple
to receive the report of the committee of
investigation. A number of these gentle
men accordingly assembled, the meeting
was organized' arid the committee proceeded
to report the result of the investigation and
of their action at Washington. Whilst
these proceedings were in prqgi-e^s Major
Jones, of General Wools staff, accompanied
by several other officers and a provost guard
of soldiers, appeared and at once seized the
papers of the committee, which comprised
not only the evidence taken undet the
original resolution, but also some documents
relating to the military government in this
city. ' '

APPENDIY.

43

ajor Jones then ordered the arrest of
the following persons, members of the In
vestigating Committee, who were present
viz: Alfred D. Evans, Thomas H. Gard
ner, Col. T. R. Rich, and Thomas Sewell,
Jr. He also called the names of Henry
Stockdale, Amos McComas, John Woods
and William Wysham, who were not pres
ent, and stated that he had orders for their
arrest. The four persons arrested were
taken to the Central police station and
detained there.
The interference of the military authori
ties caused considerable excitement among
the persons present, and a vigorous de-
niiriciation of tlbe act as an outrage, from
two or three. Those thus expressing them
selves were also threatened with arrest; but
were not finally molested. The arrests
were made by order of Gen. Wool. The
military force present belonged to the
Thirteenth Pennsylvania and the Purnell,
(Maryland) Cavalry.
About midnight some of the friends of
the parties arrested procured a band of
music and serenaded them at the police
station, when one of them addressed those
assembled, from the window, denouncing
Gen. Wool in the strongest terms.

THE CASE OF REV. CHARLES A.
HAY, D. D.
Harrisburg, Oct. 29.
Rev. C. A. Hay, whose arrest by Gen.
Wool was noticed in to-day's papers, had: a
hearing in Baltimore before that officer,
and was discharged. He returned home
Jast night. This arrest will be made the
subject of investigation.

The Harrisburg [Pa.) correspondent of
the Philadelphia Inquirer, under date of
Octpber 28, gives the following particulars
.concerning the arrest of Rev. Charles A.
Hay, D. D.: ' ' '
Rev. Dr. dharies A. Hay, of the First
Lutheran Church, Harrisburg, was arrested
at York yesterday,' while on his way from
Baltimore home, via" tbe Northern Central
Railway, by order of Major General John E.

Wool, who has command' of the militai-y de
partment embi'acing the States of Maryland,
Pentisyl vania, New Y6rk,arid New England.
The order, I learn, in, general, charges Dr.
Hay with having used disloyal language in
a letter, the purport of which was that he
had, while in Baltimore, held conversation
with a lady of secession proclivities, who
informed him that she had friends in the
federal hospitals in Baltimore, taken pris
oners by the Union army, whom she was
privileged to care for at her own horiie. —
After announcing this fact in very pointed
language, the doctor significantiy asked : —
"Why is it that Union men, who are dying
in our hospitals, are not allowed to be
taken to their homes, that proper care and
nursing may restore them, well and hearty
to the army ?"
The arrest of Dr. Hay has taken the
citizens of Harrisburg by surprise, and I
may say, has been received with a feeling
of indignation. Fpr many years has Dr.
Hay served as a minister of the gospel in
Harrisburg. None ever knew him but to
love and honor him, His professional ser
vices have long been an ornament to the
pulpit. Not only has he been an earnest
disciple, of Christ, but in his capacity of
spiritual adviser, he has considered it his
duty to urge obedience to the civil and
military laws of land, and has on maby oc
casions eloquently defended the Union
against all her enemies, foreign or intesstine.
When the present unhappy national con
test broke out, he nobly wrote, and spoke,
and labored for the old flag; beneath which
he first drew his breath, and in his daily
labors of love has never ceased to speak
words that have burned with the fire of
patriotic devotion to the genius of hberty
and the land of his birth.
He has always especially taken a lively
interest in the welfare of the sick and
wounded of the Union army. ! Almost ever
since the war commenced has his house
been a busy workshop, because of his
earnest solictations to have the ladies'Of his
flock asserrible at his resideriije and -employ
their skillful hands "in the manufacture of
clothing, bandages, and lint for the sick and
woniided. He has almost robbed himself

M

APPENDIX.

in the sustenance of the tJnion and her
gallant soldiers. Many times has he jour
neyed South to where our gallant defend
ers even now are lying, neglected, sick and
way-worn, with delicacies, and comforts to
.satisfy the wapts of those for whpse wel
fare he has earnestiy labored and prayed.
It was. on this mission of mercy that Dr.
Hay went to the city pf Baltimore, He
saw there much suffering and pain, much
wrong and neglect. He felt that this wrong
and neglect was unworthy a great nation
in its present throes of intestine feud and
war, and he frankly expressed his regret.
Dr. Hay's congregation feel justly in
jured, and his imprisonment has called forth
proper indignation on the part of his fellow-
citizens of Harrisburg.
When the arrest was publicly announced
the members of his congregation assembled
at their church, in Fourth street, and
selected a committee of the most substan
tial and influential members of their society
and delegated to them the duty of effecting
his release from confinement. This delega
tion left for Baltimore at noon to-day to
consult with General Wool."

The following is the ' correspondence, in
reference to the case of Mrs. Brinsmaide,
above alluded to :
" Office of Bowdoin, Laroques c& Barlow
. No. 35 William street,
New York, Nov. 8,,1862"
Simeon Draper, Esq:
Dear Sir: — The friends of Mrs. Brins-
made, late of New Orleans, have requested
me to ascertain the facts connected with her
arrest and imprisonment. I believe they
are substantially as follows :
About two months since Mrs. Brins-
made, the wife of Dr. Brinsmade, a young
lady of about twenty years of age, having
a pass from General Butier, arrived in this
city from New Orleans, having been placed
by her father, Theodore A. James, Esq,, a
highly respectable merchant of that city,
in the charge of Dr. Phelps, one of the sur
geons of the steamer upon, which he had
secured her passage.
She brought letters from her father to
Messrs. J. D. Scott & Co., and pt]ber gen
tlemen of this city. Upon her arrival here

she was accompanied to the Everett House
by an invalid naval officer, who had been
requested by Commodore Morris, at New
Orleans, to protect and assist her.
Mrs. Brinsmade's object in visiting the
North was to reside with her uncles, one of
them in Washington, the other in Troy.
She remained a few days in this city and
Brooklyn, and then went to Washington,
where, after renaaining four days, she was
arrested by Marshal Baker, who kept her a
close prisoner for four days, carefully
guarded. ' Some ten days after she left this city for
Washington, a hackman called on one of
her friends in New York, and said that a
lady was brought on in the train of the
previous night by a detective from Wash
ington, and conveyed to the 47th street
police station, and that her name was Mrs.
Brinsmade. An immediate application was made to
Mr. Kennedy for the cause of her, arrest
and for permission to see her. This was
rudely refused by Mr. Kennedy, who threat
ened to lock up the apphcant if the inquiry
was repeated.
Another friend of Mrs. Brinsmade then
saw a Deputy Marshal, and was informed
that she could only be seen by permission
of Mr. Kennedy. He stated that she was
confined in the 47th street station-house;
that she was a giddy, foolish, secesh woman,
who had been singing secesh songs;, that
it was thought best to send her home to her
father at New Orleans, and that she would
sail in a day or two, but that no one would
be allowed to see her.
With this assurance her friends were
forced to be contented.
Thirty-five days afterwards a letter was
received by one of her friends stating that
she was still a dose prisoner in the 47th
street station house.
Application was at once made to you.
Her friends were informed that you knew
nothing of her case; that you would at
once address the proper authority at Wash
ington for information, and if in youf pow
er would release her.
Pending this correspondence, two ladies,
the wives of two of our most reputable
merchants, who had been for mariy years

APPENDIX.

45

the neighbors and friends of Mrs. Brins-
wade, called upon Mr. Kennedy for permis
sion to see her.
They asked, "What were the charges
against her, and who were her accusers ?"
Mr. Kennedy answered, "I, madame.am
her accuser. She is a general spy. From
the moment she set her foot in this city my
presence overshadowed her. 1 did not
leave her a moment. She went to Brook
lyn to visit her friends. I watched her, and
when she returned to the Everett House I
watehed her there. She went to Washing
ton, and when I got her in the right place
I arrested her and brought her back here
and put her where she is."
In reply to the inquiry if there was no
more proper place for the confinement of
this Isidy than a pohce station, he said,
"No, that was the place for. her. That
her whole conduct on board ship indicated
that she was a spy, and that she ought to
be hung — that a thoughtless, giddy thing
like her and the one arrested a few days
since in Washington, who was making a
wagon of herself, carrying quinine to the
rebels, were the very ones to be employed
as spies, and that they all ought to be
hung." In reply to the inquiry as to whether she
was to be kept shut up where she then was
and had been for five weeks, and her friends
unable to see her or know where she was,
he replied. " That is with the Department."
Through your kind intervention, after
this long confinement, this lady was on
Monday restored to her friends.
I learn that she was arrested without the
authority of any one in Washington; that
the fact of her arrest was never reported by
Mr. Kennedy to any department of the
government; that no charges had ever been
filed, and that even her name was unknown
at the War Department; that so soon as
you were enabled to learn the facts you
obtained from Mr. Kennedy her release.

Will you be so kind as to examine the
facts as I have related them, and inform me
whether or not they are correctly stated, so
far as they have come to your knowledge 1
Yours, very truly,
SAM'L L. M. BARLOW."

" Office of the ProvostMarshal General )
of the War Department, V
Nbw York, Nov. 10, 1862. )
Samuel L. M. Barlow, Esq., New York:
Dear Sir : — In reply to yours of the 8th
inst,, I can only state that up to the 29th
ult., I had no knowledge whatever with
regard to Mrs. Brinsmade's case. On that
day Mrs. Elliott called and informed me
that she was under arrest and inquired
what was the cause.
I on the same day wrote to Washington
directing inquiry to be made of the Judge
Advocate-General. On the 1st instant, 1 was informed that
the Judge Advocate-General knew nothing
about the case.
Upon this, I asked Mr. Kennedy by what
authority he held her as a prisoner ; he
replied that she was arrested and held by
order of Col. Baker, the Provost Marshal
of Washington. This I forwarded to Wash
ington, and on the 3d inst. received from
Col. Baker and the Assistant Secretary of
War information by telegraph to the effect
that the arrest had been made b'i' one of
Mr. Kennedy's officers, and Mrs. Brinsmade
was detained by him without authqrity
from the War Department.
I then called upon Mr. Kennedy, received
from him an order directing Mrs. Brins
made's release, and went with it to the sta
tion house, took her from it and placed her
in charge of her friends.
The foregoirig is all the information that
I can give bearing on the subject.
Your obedient servant,
S. DRAPER, P. M. Gen."

46

APPENDIX.

isroT£3 a-.

Mr Webster has spoken with his usual
force and eloquence upon the importance of
the principles considered in the text. He
says: (2 Webster's Works, p.p. 392, 393)
"The Habeas Corpus Act, the Bill of
Bights, the Trial by Jury, are surer bul
warks of right and liberty than written
constitutions. The establishment of our
free institutions is the gradual work of time
and experience, not the immediate result of
any written instrument. English history
and our colonial history are full of those
experiments in representative government
which heralded and led to our more perfect
system. When our Revolution made us
independent, we had not to frairie govern
ment for ourselves, to hew it out of the
original block of marble ; our history and
experience presented it ready-made and well
proportioned to our hands. Our neighbor,
the unfortunate, miserably gpverned Mexico,
when she emerged fronh her revolution, had
in her history nothing of represeri tative
government, habeas corpus, or trial by jury;
no progressive experiments 'tending to a
glorious consummation; nothing but a gov
ernment calling itself free, with the least
possible freedom in the world. She has
collected, since her' independence, $300,000,-
000 of revenue, and has unfortunately ex
pended it all in putting up one revolution
and putting down another, and in main
taining an' army of forty thousand men in
time of p'^aCe to keep the peace."
Again, (Vol. 4, p. 1^2), Mr. Webster
says ; "The first object of a people is the
preservation of their liberty ; and liberty is
only to be preserved by maintaining consti
tutional restraints and just divisions of poli il
eal power. Nothing is more deceptive ormor6
dangerous than the pretence of a desire to
simplify government. The simplest gov
ernments are despotisrias; ihe next simplest,
limited monarchies; but all republics, all
governments of law, must impose numerous
limitations and qualifications of authority,
and give many positive and many qualified
rights. In other words, they must be sub
ject to rule and regulation. This is the very
essence of free political, institutions. The
spirit of liberty is, indeed, a bold and fear
less spirit; but it is also a sharp-sighted

spirit; it is a cautious, sagacious, discriminat
ing, far-seeing intelligence ; it is jealous of
encroachment, jealous of power, jealous of
man. It demands checks; it seeks for
guards ; it insists on securities ; it entrenches
itsself behind strong defences, and fortifies
itself with all possible care against the assaults
of ambition and passion. It does not trust
the amiable weaknesses of human nature,
and therefore it will not permit power to
overstep its prescribed limits, though benev
olence, good intent, and patriotic purpose
come along with it. Neither does it satisfy
itself with flashy and temporary resistance
to illegal authority. Far otherwise. It
seeks for duration and permanence. It
looks before and after; and, building on the
experience of ages which are past, it labors
diligently for the benefit of ages to come.
This is the nature of constitutional liberty ;
and this is our liberty, if we rightiy under
stand and preserve it. Every free govern
ment is necessarily complicated, because all
such governments establish restraints, as
well on the power of government itself as
ori that of individuals.
If we will abolish the distinction of
branches, and have but one branch; if we
will abolish jury trials, and leave all to the
judge ; if we will then ordain that the legis
lator shall himself be that judge; and if we
will place the executive pOWer in the same
hands, we may readily simplify government.
We may easily bring it to the simplest of all
possible foi;ms, a pure despotism. But a
separation of departments, so far as practi
cable, and th^ preservation of clear lines of
division between them, is the fundamental
idea in the creation of all our constitutions;
and, doubtless, the continuance of regulated
liberty depends on maintaining 'these
boundaries." Again, Mr: 'Webster says, [Works,'Vol. 4,
p.p. 109, 110] "It was strongly andforcibly
urged, yesterday, by the honorable membe'r
from South Carolina that the true and only
mode of preserving any balance of power
in mixed governments is to keep an exact
balance. This is very true, and to this end
encroachment must be resisted at tbe first
step. The question is, therefore, whether
upon the true principles of the Constitution,

APPENDIX.

47

this exercise of power by the President can
be justified. Whether the consequences be
prejudicial or not, if there be an illegal ex
ercise of power, it is to be resisted in the
proper manner. Even if no harm or incon
venience result from, transgressing the
boundary, the intrusion is not to be suffered
to pass unnoticed. Every encroachment,
great or small, is irnportant enough to
awaken the attention pf those who are in
trusted with the preservation of a constitu
tional government. We are not to wait
till great public mischiefs come, till the gov
ernment is overthrown or liberty itself put
into extreme jeopardy. We should not be
worthy sons of our fathers were we so to
regard great questions affecting the general
freedpm. Those fathers accomplished the
Revolution on a strict question of principle.
The Parliament of G^eat Britain asserted a
right to tax the Colonies in all cases what-
* soever, and it was precisely on this question
that they made the Revolution turn. The
amount of taxation was trifling, but the
claim itself was inconsistent with liberty;
and that was, in their eyes, enough. It was
against the recital of an act of Parliament,
rather than against any sufi'ering under its
enactments, that they took up arms. They
went to war against a preamble. They
fought seven years against a declaration. —
They .poured out their treasures and their
blood., hke water, in a contest against an
assertion which those less sagacious and not
so well schooled in the principles of civil
liberty would, have regarded as barren
phraseology, or , niere . parade pf wprds,
They saw in the claim of the British Parlia
ment a seminal principle of mischief; the
germ of unjast power,; they detected it,
dragged it forth from underneath its plausi
ble disguises, struck at it; nor did it elude
either fheir steady eye or their well-directed
blp;BV .tin they had extirpated and destroyed
it to the smallest fibre. On this question
of principle, while actual suffering was yet
afar off, they raised their flag against a
power, tp which, for purpose of foreign
conquest or subjugation, Rome in the
height.of he;; glory is not to be compared;
a ppvver which has.iJotted pyer the surface
of the whole, globe with her possessions and
military posts, whose morning drum-be^t»

following the sun and keeping company with
the hours, circles the earth with one contin
uous and unbroken strain of the martial airs
of England."
Again, Mr. Webster says, [Works, Vol.
4, p.p. 133, 134, 135,] "Mr. President, the
contest, for ages, has been to rescue Liberty
from the grasp of executjve power. "Who
ever has engaged in her sacred cause, from
the days of the downfall of those great
aristocracies which have stopd between the
king and the people, to tjie time of our in
dependence, has struggled for , the accom
plishment of that single object On the
long list of the champions of human free
dom, there is not one name dimmed by the
reproach of advocating the extension of ex
ecutive authority; on the contrary the
uniform and steady purpose of all such
champions has been to limit and restrain it
To this end the spirit of libert-)-, urowint;-
more and more enlightened and more and
more vigorous from age to age, has been
battering, for centuries, against the solid hut
ments of the feudal system. To this end,
all that could be gained from the impru
dence, snatched from the weakness, or wrung
from the necessities of crowned heads, has
been carefully gathered up, secured and
hoarded, as the rich treasures, \he very
jewels of liberty., To this end,, popular and. ,
representative right has kept up its warfare .
against prerogative, with various success,;
sometimes writing the history of a whole
age in blood, sometimes witnessing the jnar-
tyrdom of Sidneys and Russells, often
baffled and. repulsed, butstill gaining on the
whole, and holding what it gained with a
grasp which nothing but the complete
extinction of its own being could compel it
torelinqulish. At length, the great con
quest over executive ppwer, in the leading
¦Western States of Europe, has been accom-
plistjed. The feudal system, like other
stupendous fabrics of past agps, is known
only by the rubbish it has left behind it. —
Crovvned heads have been compelled, to
submit to the restraints of law, and the
PEOPLE, with that_ intelligence and that
spirit which make their voice resistless, have
been able to say to prerpgatives 'Thus far,,
shalt thou come, and no. farther.' I need
hardly say, Sir, that into the full enjoyment

48'

APPENDIX.

of all which Europe has reached Only
through such slow and painful steps, we
sprang at once, by the Declaration of In
dependence, and by the estabhshment of
free representative governments; govern
ments borrowing more or less from the
models of other free States, but strengthened,
secured, improved in their symmetry, and
deepened in their foundation, by those great
men of our own country whose names will
be as farriiliar to future times as if they were
written on the arch of the sky.
Through all this history of the contest
for liberty, executive power has been re
garded as a lion which must be caged. So
far from being the object of enlightened
popular trust, so far from being considered
the natural protector of popular right, it has
I) Bn dreaded, uniformly, always dreaded,
as the great source of its danger.
And now, Sir, who, is he, so ignorant of
the history of Li berty, at home and abroad ;
who is he, yet dwelling in his contempla
tions among the principles and dogmas of
the Middle Ages; who is he, from whose
bosom all original infusion of American
spirit has become sO entirely evaporated and
exhaled, that ho shall put into the mouth
of the Pesident of the United States the
doctrine that the defence of liberty naturally
results to executive power, and is its peculiar
duty ? Who is he, that generoii s and Con
fiding towards power where it is most dan
gerous, jealous only of those who can
restrain it ; who is he, that, reversing the
order of the State and upheaving the base,
would poise the pyi-amid of the political
system upon it apex? Who is he, that,
overlooking with ' contempt the guardian
ship of the representatives of the people,
and, with equal contempt, the higher
guardianship ' of ¦ the people themselves ;
who is he that declares to us, through the
President's lips, that the security for free
dom rests in executive authority ? Who is
he that belies the blood and libels the fame
of his own ancestors, by declaring that they,
with solemnity of form, and force of man
ner, have invoked the executive power to
come to the protection of liberty ? Who is
he that thus charges them with the insanity
or recklessness of putting the lamb beneath
the lion's paw? — No, Sir, no Sir. Our

security is in our watehfulness of executive
power. It was the constitution of this
department which was infinitely the most
difficult part of the great work of creating
our ' present government. To give to the
executive department such power as should
make it useful, and yet not such as should
render it dangerous; to make it efficient, in
dependent, and strong, and yet to prevent
it from sweeping away everything by its
union of military and civil authority, by the
influence of patronage, and office, and favor
— this, indeed, was difficult. They who had
the work to do saw the difficulty, and we
see it ; and if we would maintain our system
we shall act wisely to that end, by pre
serving every restraint and every guard
which the Constitution has provided. And
when we, and those who come after us,
have done all that we can do, it will be well
for us and for them, if some popular execu
tive, by the power of patronage and party,
and- the power, too, of that very popularity,
shall not hereafter prove an over-mateh for
all other branches of government.
I do not wish. Sir, to impair the power
of the President, as it stands written down
in the Constitution, and as great and good
men have hitherto exercised it. In this, as
in other respects. / am for the Constitution
as it is. But I will not acquiesce in the
reversal of all just ideas of government; 1
will not degrade the character of popular
representation; I will not bhndly confide
where all experience admonishes me to be
jealous; I will not trust executive power,
vested in the hands of a single magistrate,
to be the guardian of liberty."
Again, (VOL 2, p. 602,J "The next fun
damental principle in our system is, that the
will of the majority, fairly expressed through
the means of representation shall have the
force of law; and it is quite evident that in
a country without thrones or aristocracies,
or privileged castes or classes, there can be
no other foundation for law to stand upon ;
and, as the necessary result of this, the third
element is, that the law is the supreme rule
for the government of all. The great sen
timent of Alc»us, so beautifully presented
to us by Sir "William Jones, is absolutely
indispensable to the construction and main
tenance of our political systems :—

APPENDIX.

49

f 'What constitutea a Statef
Not high raised battlement or labored mound,
Thick wall or moatod gate;
Not cities proud, -with spires and turrets crowned:
Not bays and broad-armed pbrta,
Where, laughing at the storm, rich navies ride;
Not starrea and spangled courts.
Where low-browed baseness wafts perflime to pride.
No! Mbn, high-minded Men,
With powers as far above dull brutes endued.
In forest, bralce or den.
As beasts excel cold rocks and brambles rude;
Men who their duties know.
But know their rights, and, knowing, dare maintain;
Prevent the long aimed blow,
And crush the tyrant while they rend the chain : i
These constitute a Stale; b
And 80TEEEI0S LAW, that State's collected will,
O^er thrones and globes elate
Sits empress, crowning good, repressing ill.'
And, finall , another most important
part of the great fabric of American Lib
erty is, that there shall be written con
stitutions, founded on the immediate au
thority of the people themselves, and regu
lating ANn restraining all the powers
CONFERRED UPON GOVERNMENT, WHETHER
legislative, EXECUTIVE OR JUDICIAL."
Alexander Hamilton (in the Eederalist,
No. 26) states very clearly the dangers
consequent upon a violation of constitu
tional provisions on the plea of necessity. —
He says, "Wise politicians" * * * *
"know that every breach of the funda
mental laws, though dictated by necessity,
impairs that sacred reverence which ought
to be maintained in the breast of rulers
toward the Constitution of a country, and
forms a precedent for other breaches when
the same plea of necessity does not exist
at all, or is less urgent and palpable." '
Washi|agton, in his Farewell Address, did
not overlook the importance of preventing
the consolidation of all the powers of govern
ment in a single department, for he said,
"It is important likewise, that the habits of
thinking, in a free country, shorild inspire
caution in those intrusted with its adminis
tration, to confine themselves within their
respective constitutional spheres — avoiding,
in the exercise of the powers of one depart
ment, to encroach upon another. The spirit
of encroachment tends to consolidate the
powers of all the departments in one, and
thus to create, whatever the form of govern
ment, a real despotism. A just estimate of
that love of power, and proneness to abuse
it, which predominates in the human heart,
is sufficient to satisfy us of the truth of this
position. The necessity of reciprocal checks
(7)

in the exercise of political power, by diviJ"
ing and distributing it into different deposit
ories, and constituting each the guardian of
the public weal, against invasions by the
others, has been evinced by experiments,
ancient and modern; some of them in our
country and under our own eyes. To pre
serve them must be as necessary as to insti
tute them. If, in the opinion of the people,
the distribution or modification of the con
stitutional powers be in any particular
wrong, Jet it be corrected by an amend
ment in the way which the constitution
(designates. But let there be no change by
usurpation; for, though this, in one in
stance, may be the instrument of good, it
is the customary weapon by which free
governments are destroyed. The precedent
must always greatly overbalance in per
manent evil, any partial or transient bene
fit, which the use can at any time yield."
In John Adams' "Defence of the Consti
tutions of Government of the United States
of America," contained in the edition of his
" Works," edited by his grandson, Charles
F. Adams, the present Minister of the United
States, at London : — He says; (vol, 4, p.401,)
" To demonstrate the necessity of two as
semblies in the legislature, as well as of a
third branch in it, to defend the executive
authority, it may be laid down as a first
principle, that neither liberty nor justice can
be secured to the individuals of a nation,
nor its prosperity promoted, but by a fixed
constitution of government, and stated laws,
known and obeyed by all. M. Turgot, in
deed, censures the ' falsity of the nc tion,
so frequentiy r^eated by almost all repub
lican writers, that liberty consists in beinsr
subject only to the laws;' as if a mart could
be free while oppressed by an unjust .law.
This would not be true, even if we could
suppose that all laws were the work of an
assembly of the whole nation; for certainly
every individual has his rights, of which the
nation cannot deprive him, except by vio
lence and an unlawful use of the general
power." Again — "Our friend Dr. Price
has distinguished very well concerning (phy
sical, moral, religious and civil liberty ; and
has defined the last to he 'the power of a
civil society to govew itself by its own dis-

50

APPENDIX.

cretion.ror by laws of its o« n making, by
the majority in a collective body, or by fair
repressflnlation. In every free state every
man is his own legislator. Legislative
government consists only in thedominiou of
equal laws made with common mraeiil., and
not in the dominion of any man over other
meri." Again, at p. 387 he quotes the
following with approbation. "In order
to preserve a balance in a mixed state, the
limits of powCT deposited with each party
ought to be ascertained and generally'kriown.
The. defect of this is the cause that intro
duced those strugglings in a state about pre
rogative and liberty ; about encroachments
of the few upon the rights bf the many,
and- of the many upon the privileges of the
few; which ever did, ard'tvei' will conclude
in a tyranny ; first, either of the few or the
many, but at last; infallibly, of a single per
son/' Again, at page '403, he' writes, "All
other government than that of permanent
known laws, is the government of mere will
and pleasure, whether it be exercised by one,
a few, or many. Republican writers in gen
eral, and ' those of England in jjarticuiar,
have maintained the same principle with.
Dr. Price, and, have, said that legitimate
governments, pr well ordered common
wealths, or well constituted, governments
wei;e ,tii,ose where the laws prevailed," &c.
Aristotie says, 'that a government where
the laws alone should prevail would be the
Kingdom of God."
"Aristotie says too, in another place, 'order
is law, and it is more proper that law should
govern, than any one of the citizens;, upon
the same principle, if it, is advantageous to
place the supreme power in some particular
persons, they should be appointed to be only
guardians and servants of the laws.' These
too, are very just sentiments," &c.
"Sidney says, 'rio sedition was hurtful to
Rome, until through their pi-osperity, some
men' gained a power above the laws."
In another place he tells us that " no
government was thought to be well consti
tuted unless the laws prevailed against the
commands of men "
Again at p. 409 he writes "Sidney says
'Libei'ty consists solely in an independency
on the wi'U of another; and; by a slave, we

understand a man who can neither dispose
of his person or goods, but enjoys all at the
will of his master." And again, "as liberty
consists only in being subject to nO man's
will, and nothing denotes a slave but a de
pendence upon, the will of another; if there
be no other law in a kingdom but. the wiH
of aprince, there is no such thing as liberty."
Again p. 403, Mr. Adams says; "no man
will contend that a nation can be free that
is not governed by fixed laws. All other
government than that of permanent known
laws, is the government of mere will and
pleasure, whether it be exercised by one, a
few, or many."
Again, (at page 409,) Mr. Adams— after --
having quoted from Montesquieu, De Lolme,
arid other distinguished writers — says:
" Even our amiable friends, those benevolent
Christian Philosophers, Dr. Price arid Dr.
Priestley, acquaint us that they are con
strained to beHeve human nature no better
than it should be. The latter says, ' there
is no power on earth but has grown exhor-
bitant when it has met with, no control.'
The former 'such are the principles that
govern human nature; such the weakness
and folly of men ; such their love of dom
ination, selfishness and depravity, that none
of them can be raised to an elevation above
others, without the utmost danger. The
constant experience of the world has veri
fied this,' and proved that nothing intoxi
cates the human mini:! so much as power.
In the estabhshment, therefore, of civil
government, it would be preposterous to rely
on the discretion of any man. A peopy
will never oppress themselves or invade thele
own rights; but if they trust the arbitrarir
will of a body or a succession of men they
trust enemies.'
Shall we say that all these philosophers
were ignorant of human nature ? With all
my soul, I wish it were in my power to
quote any passages in history or philosophy
which might demonstrate all these satires
on our species to be false. But the phenom
ena are all in their favor, and the only ques
tion to be raised with them is, whether the
cause is wickedness, weakness or insanity."
Tho careful perusal of the several chap
ters in Mr. Adams' works, from which these

APPENDIX.

51

extracts have been taken will suggest many
important considerations of deep interest to
our people.
Chancellor Kent says, (Commentaries,
vol 2, 1 Edition, p. 638:)— The habeas
corpus act has always been considered in
England as a stable bulwark of civil liberty,
and nothing similar to it can be found in
any of the free commonwealths of antiquity.
Its excellence consists in the easy, prompt
and efficient remedy aff'orded for all urilaw-
ful imprisonment, and personal liberty is not
left to rest for its security upon general and
abstract declarations of right."
Ju(5ge Bouvier says, (Institutes vol. 1, p.
90, sec. 209) "It is of the greatest importance
to the people that personal liberty should be
religiously respected. If a man's property
should be arbitrarily taken, the fact would
alarm his fellow citizens and they would be
prepared to resist. But to arrest a man,
put him in an obscure and impenetrable
prison, and there leave him, without any
knowledge on the part of his family or
friends as to his place of confinement, and
perhaps forgotten by those who deprived
him of his liberty, is an act which, being
hidden, makes less sensation, and for that
cause becomes more dangerous to public
liberty. Tbe Constitution^ has wisely pro-.
vided that no person shall " be deprived of
his life, liberty or property, without due
process of law."
Judge Walker, (Introduction to Ameri
can Law, Ed. of 1837, pp. 186 and 187, §
186,) after referring to the constitutional
provision in regard to the suspension of the
privilege of the writ of habeas corpus, and
. stating that the writ there meant is "that
high and imperative wi;it which issues as a
matter of peremptory right, in favor of any
person who is in confinement or detention."
Says, ' no comment can make the import
ance of this privilege more manifest than
the bare statement of what it is. In fact it
is universally regarded as the grand bulwark
of corporal liberty; and hence the precau
tion to declare that it shall never be suspend
ed except in cases of the most overpowering
necessity," Stephens, in his edition of De Lolme,

on the English Constitution, in treating of
the English habeas corpus act — and, after
stating its general provisions, says : — ('vol. 1,
p. 455,) "It is impossible to question the
wisdom of these enactments for where the
liberty of the subject is concerned,, the land
marks by which the discretion of the com
mitting magistrate is to be regulated should
be accurately defined, and positive in their
nature ; for the arbitrary discretion of any
man is the law of tyrants — it is always
unknown; it is different in different men;
it is casitql, and depends upon constitution,
temper and passion; in the best it is often
times capricious; in the worst it is every
vice, folly and passion to which human
nature is liable."
And the same author, in respect to the
conduct and pretensions of James II, says,
(p. 462,) "It should have been remembered
that power is to be watched in its very first
encroachments, and that nothing is gained
by timidity and submission ; that every con
cession adds new force to usurpation, and
at the same time, by discovering a dastardly
spirit, inspires the enemy with new coUrage
and enterprise."
Lord Bolingbroke says : — " In every kind
of government some powers must be lodged
in particular men, or bodies of men, for the
good order and preservation of the whole
community. Tjhe lines which circumscribe
those powers, are the bounds of separation
between the prerogatives of the prince, or
other magistrate, and the privileges of the
people. Every step which the prince or
magistrate makes, beyond these bounds, is
an encroachment on liberty, and every
attempt towards making such a step is a
danger to liberty." Bolingbroke's works,
vol. 1, p. 296.
" The effects of a bare faced prerogative
are not the most dangerous to liberty, for
this reason; because they are open; because
the alarm they give is commonly greater
than the progress they make; and whilst
a particular man or two is crushed by them,
a whole nation is put on its guard. The
most dangerous attacks on liberty are those
which surprise or undermine,; which are
owing to powers given under pretense of some

52

APDENDIX.

urgent necessity; (*) to powers, popular and
reasonable, perhaps, at first; but suoh as
ought not to become settied and confirmed
by a long exercise ; and yet are rendered
perpetual by art arid management, and, in a
gieat degree, by the nature of these powers
themselves." Ibid, p. 370.
go" Whenever the fundamentals of a free
scVernment are attacked, or any Other
„ hemes, ruinous to the general interest of
nation, are pursued, the best service that
Can be done to such a nation, and even 'to
the prince, is to' commence an early and
vigoroui opposition to them; for the event
will always show, as we shall soon see in the
present case, that those who form an oppo
sition in this manner are the truest friends
to both, however they may be stigmatized
. at first with odious names, which belong,
more properly to those who throw the dirt
at them.
If an opposition begin late, or be carried
on more faintiy than the ^igency requires,
the evil will grow ; nay, it will grow the
more by such an opposition, till it becomes
at length too inveterate for the ordinary
methods of cure; and whenever that hap-
pens.whenever usuipations on natural liberty
are grown too strong to be checked by these
ordinary methods, the people are reduced
to this alternative; — they must either sub
mit to slavery and beggary, the worst of all
political evils, or they Diilst endeavor to pre
vent the impending mischief by open force
and resistance, which is an evil but one
degree less eligible than the other. But
when the opposition is begun early, and
carried on vigorously, there is time to obtain
redress of grievances, and put a stop to
such usurpations by those gentle and safe
methods which their constitution has pro
vided; methods which may, and have often
proved fatal to wicked riainisters, but can
never prove fatal to the prince himself He
is never in danger but when those methods,
which all arbitrary courts dislike, are too
long delayed." Ibid, 428.
"The time serving flatterers of princes
and ministers have no point, amongst all

(*) " And with necessity,
1b.» tyrant's ploa, excused Ms dAvilish deeds." MtlkM.

the nauseous drudgery imposed on them,
which they are more obliged to labor 'than
that of representing all the effects of a spirit
of liberty as, so many effects of a spirit of
faction. Examples might be found, even
without searching long, or looking far after
them. &c." Ibid, 304.
Dr. Lieber, in bis Civil Liberty and Self
Government, (vol. 1, p. 128,) says:— There
can be no liberty where every citizen is not
subject to the laW, and where he is subject
to aught else than the law."
Edmund Borke, in his "Letter to the
Sheriffs of Bristol, on American affairs,"
written in 1777, in re.»pect to certain stat-
tutes, intended to apply to the revolted .colo
nies, said : — " Of the first of these statutes,
(that for the letter of marque.) I shall say
little." * * * * " The other, (for a
pai'tial suspension of the habeas corpus,)
appears to me of a much deeper malignity."
Doctor Johnson, according to Boswell,
said: — "The Habeas Corpus h the single
advantage which our government has, over
that of other countries "
Hume says :— "Arbitrary imprisonment
is a grievance which, in some degree, has
place in almost e^ery government except in
that of Great Britain, &c * * * *
The Great Charter had laid the founda
tion of this valuable part pf liberty.. The
petition of right had renewed and extended
it ; but some provisions were still wanting
to render it complete, and prevent all evasion
or delay from ministers and judges. ^ The
act of habeas corpus, which passed this
session, served these purposes."
Macaulay, in speaking of James II, says:
" One of his objects was to obtain a repeal
of the habeas corpus act, which he hated,
as it was natural a tyrant should hate the
most stringent curb that ever legislation
imposed on tyranny." *****
" It is indeed, not wonderful that this great
law should be highly prized by Englishmen,
without distinction of party, for it is a law
which, not by circuitous, but by direct ope
ration, adds to the security and happiness
of every inhabitant of the realm. " Chap. 6,
vol. 2, p. 3.

APPENDIX.

53

Ferguson (Essay on Civil Society, p. 302.)
says, in speaking of the habeas corpus act :
— " We must admire, as the key-stone of
civil liberty, the statute which forces the
secrets of every prison to be revealed, the
cause of every commitment to be declared,
and the person of the accused to be pro
duced, that he may claim his enlargement
or his trial within a limited time. No wiser
form was ever opposed to the abuses of
power. But it requires a fabric no less than
the whole political constitution of Great
Britain, a spirit no less than the 'refractory
and turbulent zeal of this fortunate people,
to secure its effects."
Curran, the great Irish orator and patriot,
in his pleading for Judge Johnson, speaking
of the habeas corpus act, and other pro
visions intended to secure the personal lib
erty of the subject, said: — " Such were the
bulwarks which our ancesters drew about
the sacred temple of liberty — such the
ramparts by which they sought to bar out
the ever-toiling ocean of arbitrary power,
and thought, (generous credulity !) that
they had barred it out from their posterity
forever. Little did they foresee the future
race of vermin that would work their way
through these mounds and let back the in
undation." Gen. John C. Fremont is reported, in
the newspapere, as having, (in his apparently
carefully prepared address at St. Louis, in
November, 1862, upon the occasion of his
reception in that city and the presentation
of a sword by his German fel'ow citizens,)
said, " But while you give the wealth and
power of the nation to maintain the iiiegrity
of its territory, and while you stand by
your constituted authorities with inviolable
fidelity and hold them inflexibly in position,
you must with equal determination main
tain those safeguards which have been
thrown around your personal liberties. —
The strength of the nation to rise superior
to every assault lies in the maintenance of
individual liberty as it stood under the
supremacy of the laws, — in the freedom of
speech and freedom Of the press. Every
invasion of the laws is a usurpation, dan
gerous in revolution, and not to be justified
by any plea of temporary expediency. —

Obsta principiis — stop the beginnings, and
stop therii decisively, remembering that il
you fail in this duty you surrender tbe
sword arid the people fall."
General Fremont could have cited the
best authorities in support of these doctrines.
One quite in point in reference to the dan
gerous advances of arbitrary power may be
appropriately quoted. John Adan s has
written (Works vol. 3, 490,) "The spirit
of liberty is and ought to be a jealous, a
watchful spirit. Obsta principiis is her
motto and maxim, knowing that her ene
mies are secret and cunning, making the
earliest advances slowly, silentiy, and softly,
and that according to her unerring oracle,
Tacitus, 'the first advances of tyranny are
steep and perilous, but when once you are
entered parties and instruments are ready
to espouse you.' It is one of these early
advances, these first approaches of arbitrary
power which are the most darigerous of all,
and, if not prfl^ented, but sumred to steal
into precedents, will leave no hOpe of a
remedy without recourse to nature, violence
and war."
And President Hopkins, in his late Work,
published in October, 1862, (p. 275,) ob
serves, perhaps without intending tO pre
sent in striking contrast the present and
the past of our nation's history,) " that this
subject of rights regarded as a barrier
against encroachment, and as involving du
ties, demands the especial attention of a
free people. Among such a people there
will always be a tendency to regard liberty
as a right of unrestrained action, and rights
as something to be enforced. It is those
da'yS when liberty was gained' and rights
enforced that nations celebrate. But it is
easier to gain liberty arid enforce rights
than, having gained them, to practice the
self-control that shall respect' rights, and
the self-denial and faithfulness and patient
waiting required in performing, the duties
that our rights involve. This is ihe turn
ing point with us. Can we use oui- free
dom and enjoy our rights without encroach
ing upon the liberty and rights of others ?
Will parents and magistrates and citizens
fulfil the duties that correspond to their
rights ? Will they see that individual and

'.0,54

APfpNUIX.

, unauthorized action is so, restrained that all
shall have their, rights? There is no
, grander sight than that of a great people,
powerful and free, wider the guidance of a
comprehensive wisdom, always arresting
its action at the point where it touches the
rights of others, protecting those of the
most feeble, and trusting calmly for its
aggrandizement to the gradual but resistless
power of intelligence,, industry, and free
dpm under the guidance of justice. And
.there is no sadder sight than such a people
governed by fraud and cunning, torn by
faction, disintegrated by selfishness, deny
ing te others what they claim for thernselves,
with no faith in the natural power of free
institiiiions to perpetuate and extend them
selves without force, and thus putting into
the hands of others a, cup, which, in the
circuit and balance of Cod's retributions
must be returned to their own; lips, and
which they must be compelled to drain to
the very dregs''
¦ "<A^hen the State, of Hew York had, in
1813, a Supreme Court, held by James
Kent,* as Chief Justice, Smith Thpmpson,f
Ambrpse Spencer,| William W. 'V'an Ness-
and .Joseph C. Yatesi§ as 4-Ssociate Justices,
that Court was not cowed into base sub
mission to the arbitrary will of a Major
General of the Army. In Stacy's case,
(10 Johnson's, Rep, 328,) a writ of habeas
coj-^M* had been issued, by a Supreme Court
Commissioner, directed to "Isaac Chaun
cey, Cpmmandant pf the Navy of the Uni
ted States on Lake Ontario, and to Morgan
Lewis, commanding the troops of the Uni
ted States at the station of Sackett's Har
bor," commanding them to produce the
bpdy of said Stapy, &c. To this General
Lewis^ as General of Division in the Army
of the United States, made an evasive
return, and neglected to obey the writ.
The Commissioner then submitted the
case to the Supreme Court for advice
and aid,
G.eneral Lewis had been a Justice of the
Supreme Court and Governor of the State
.of New York, and he was then a.M.aior

.fteneral of the U. S. Army; but the Su
preme Court was not inclined to allow him
to place himself above the law. The views
entertained by that Court, will appear by
their unanimous opinion as delivered by
the Chief Justice, in the following words:
" Kent C, J. — The return is,insufficient
and bad on the face of it. The writ, was
directed to Morgan Lewis, as commander
of the troops of the United States at Sack
ett's Harbpr ; and under his titie of ' Gen-
,eral of Division in the Army of the United
States,' he sitaply returns ' that the within
named Samuel Stacy, jr., is not in my cus
tody.' This was evidently an evasive ' re
turn. He ought '^to have stated, if he
meant to excuse himself for the non-pro
duction of the body of the party, that
Stacy was not in his possession or power.
The case of The King vs Winton (5 Term
Rep. 89,) is to this point; and the observ
ations and decision of the King's Bench in
that case are entitied to oiir deepest atten
tion. That was the case of a habeas cor
pus granted by a Judge in vacation,, and
returnable imrnediately before him. The
return by the person to whom the writ was
directed -yvas, that he had not the bodyof
the party 'detained in his custody;' and
that return being filed in the King's Bench,
an attachment, on a rule to show cause, was
made absolute against the party for an
insufficient return, Mr. Justice Grose, in
giving his opiiion, observed 'that the
Courts always looked with a watchful eye
at the returns to writs of habeas corpus;
that the liberty of the subject essentially
depended on a ready compliance with tha
requisitions of the writ, and the Courts
were jealous whenever an attempt was made
to deviate from the usual form of the re
turn, that the party 'had not the person in
his possession, custody or power,' and that
it had not been adopted in that case, but
an eq^uivocal one substituted, and words
' power and possession omitted.' The ac
companying return, in this case, of Torrey,
the Proypst Marshal, does, of itself, contra.
diet the return of General Lewis; for he

*'Afterwarda Chancellor.
t Afterwards Chief Justice and subsequently. Secretary
of the Nary, and' a Justice of the Supreme Court' bf the
-United.Stites. ''

X AfterM-ards Chief Justice.
§ Afterwards Governor of New "Vork.

APPENDIX.

admits that Stacy is detainer in his custody,
unde ran order issued from the Adjutant
General's Office at Sackett's Harbor, so late
as the 24th July last. This order, and the
detention under it. we are bound to consider
as the act of General Lewis, the commander
at that station, and we are equally bound
to consider the prisoner as being in his
possession, custody and power,
' Here is, then, appearing ou the very face
of the return, a contempt of the process.
But this is not all. The affidavit of But-
terfield; who served the writ, proves not
only the fact, that Stacy was then in cus
tody, under tha orders, and by the author
ity of General Lewis, but that the direction
of the writ was intentionally disregarded.
The only question that can be made is,
whether the motion for an attachment shall
be granted, or whether there shall be only a
rule upon the party offending to show
cause by the first day of the next term,
why an attachment shall not issue. After
giving the case the best consideration which
the pressure of the occasion admits, I am
of opinion that the attachment ought to be
immediately awarded. . The attachment is
but process to bring the party to answer for
the alleged contempt, and upon the present
motion, we must act, as the Courts have
always, of necessity, acted, in like cases,
upon the return itself, and the accompany
ing affidavits of the complainant. This is a
case which concerns the personal liberty of
the citizen. Stacy is now suffering the
rigor of confinement in close custody, at
this unhealthy season of the year, at a mil
itary camp, and under military power. He
is a natural born citizen, residing in this
State. He has a numerous family depend
ent upon him for their support. He is in
bad health and the danger of a protracted
confinement to his health, if not to his life,
must be serious. The pretended charge of
treason, (for upon the facts before us we
must consider it as a pretext,) without be
ing founded on oath, and without any spe
cification of the matters of which it mi^ht
consist, and without any color of authority
in any military tribunal to try a citizen for
that crime, is only aggravation of the op
pression of the confinement. It is the

indispensable duty of the Court, and one to
which every inferior consideration must be
sacrificed, to act as a faithful guardian of
the personal liberty of tjie citizen, and to
give ready and effectual aid to the means
provided by law for its security. One of
the most valuable of those means is the writ
of habeas corpus, which has justly been
deemed the glory of the English law ; and
the Parliament of England as well a-s the
courts of justice, have on several occasions,
and for the period, at least, of the two last
centuries, shown the utmost solicitude, not
only that the writ, when called for, should
be issued without delay, but that it should
be punctually obeyed. (See Brown's case,
Cro. Jac. 343, and the Stat, of 16, Car. I,
C. 10, 5, 8.) Nor can we hesitate in
promptly enforcing a due return to the
writ, when we recollect that in this country
the law knows no superior; and that in
England, their Courts have taught us, by
a series of instructive examples, to exact
the strictest obedience, to whatever extent
the persons to whom the writ is directed
may be clothed with power, oi- exalted in
rank. On ordinary occasions, the attach
ment does not issue until after a rule to
shew cause ; but whether it shall or. shall
not issue in the first instance, must depend
upon the sound discretion of the Court,
under the circumstances of each particular
case. It may, and it 'often does issue in
the first instance, without a rule to shew
cause, if the case be urgent or the contendpt
flagrant. On this point the authorities are
sufficiently explicit. (Rex vs Jones, Stra.
185; Davies, Ex. dem. Povey vs Doe, 2
Bl. Rep. 892; Hawk. tit. Attachment b,
2, c 22, § 1.)
If ever a case called for the most prompt
interposition of the Court to enforce obedi-,
ence to its process this is one. A military
commander is hejre assuming criminal juris
diction over a, private citizen, is holding him
in the closest confinement, and contemning
the civil authority of the State. The par
ties are, also, at so great a distance, that no
rule to show cause cDuld be made returna
ble at this term; and if no gooil cause was
shown at the next term, an attachment
could not probably be issued from the city

66

APPENDIX.

of New York, where the Cou*t will then
sit, and be returned the same term. Unless
the attachment goes the injured party may
not feel the benefit of our assistance until
the ensuing winter. That delay would
render the remedy alarming impotent. The
case of Rex vs Earl Ferrers, (1 Blirr. 631,)
is a precedent in point for awarding the
attachment in the first instance. In that
case,, a second writ of habeas corpus was
issued, (the first writ not being obeyed
without fault, as the party who sued out
the writ, and who was the brother of Lady
Ferrers, agreed not to prosecute it,) and not
being obeyed, an attachment was moved
for, without a rule to shew cause, and was
granted. Lord Mansfield observed that

'the Court may eifforce speedy obedience
to the writ, and the circumstances of the
case (where delay might be very danger
ous) lequired it. And, therefore, the Court
thought, under the extraordinary circum-
. stances of that case, an attachment should
issue to enforce obedience to that writ of
habeas corpus which so much affected the
preservation and security of that lady.
I am, for these reasons, of opinion that"
an attachment ought to issue."
And, by the whole Court, the attach
ment was orderejl to issue, but not to be
served provided the command of the writ:
of habeas corpus was comphed with by.
General Lewis, on his being informed of
the decision of the Court.

ISrOTB H- OlSr 2v(r.A.:R,TI.A-X. TaJ^-\fT.

The term Martial Law, has, of late, been
frequentiy used ; but its proper signification
does not appear to be generally understood.
It is important to our people, and especial
ly important to the gkllant officers and
heroic soldiers who may be called upon to
execute orders pt the War Department —
" likely to" be as dangerous to them as to the
safety of the citizen" — that the significance
and force of the term, and the character
and purpose of the anthority — ;or rather
power — ordinarily exercised where martial
law prevails — should be deliberately con
sidered;— ^and. that the question, whether it
can be constitutiorially and legally declared
by any officer of the government or of the
army of the United States, should be freely
and dispassionately discussed.
The citizen is interested in these questions,
for the experience of the last eighteen
months has taught us that no one is safe
from injury, when, on the secret information
of private or political enemies, or on the
report of spies and informers, he may be
aiTCsted upon a telegram, or general order
of the War Department, and bastiled in a
remote secti(3n of the couhtry; — and, with
out being allowed ariy of the privileges
which it has been supposed, were, absolutely

and adequately, secured to every citizen, by
the constitution.
The officer and soldier are interested, be
cause ;^-as was said by Chief Justice Shaw,
in" Commonwealth vs. Blodget, (12 Met-
calf 's Rep. 56,) a case arising under the
act of the legislature of Rhode Island, de
claring martial lay in that state during the
Dorr rebellion, — "the sound rule is, that he
who does acts injurious to the rights of
others can excuse himself, as against the
partv injured, by pleading tho lawful com
mands only of a superior, whom he is bound
to obey. A man may be often so placed
in civil life, and jnore especially in military
life, as to be obliged to execute unlawful
commands on pain of severe penal conse-
queilces. As against the party giving such
'command, he will be justified; in foro con-
scientia (*) he may be excusable; but
towards the party injured, the act is done
at his own peril, and he must stand respon
sible." It is not the province of any sirigle indi
vidual, or of any single officer of the execu
tive, legislative, or judidal department of
the government to assume tO determine
conclusively the questions which the jiresent
discussion may suggest. Their aulhorita-

(*) In the tribunal of conscience.

APPENDIX.

5T

tire determination must necessarily rest with
the Supreme Court of the United States,
unless the Constitution of the'United States;
and the government establi shed under it
shall be overthrown; Until such authorita
tive determination can be had, every one
must necessarily determine for himself, if
occasion shall demand it, what opinions and
what action it is his duty to adopt. It is
therefore proper to bring together the
opinions of the most respected and reliable
military and legal writers, who have discuss
ed these questions ; and whose opinions will
have great weight and authority in the 'au
gust tribunal on whose decision such mo
mentous interests depend. - And a free and
fall discussion of these questions should be
invited rather than repelled.
Martial law and Military law have been
sometimes considered, and more frequently
used, as convertible terms; and there is
much reason to suppose that there can, be
no such thing as martial law, under the
Constitution, or authority of the United
States. , To apply that term to that system
of code of law which embraces the rules
and articles of war, and the acts of Congress,
relating to our army, — and which is more
osualiy, and more appropriately denomi
nated Military Law, — is manitestiy im
proper. CoL Scott, (the son-in-law and aid of
Lieut. Gen'l Scott,) whose Military Diction
ary, published in 1861, doubtless passed
under the careful review and criticism of
the General, gives in that work, his appa
rently well considered and carefully express
ed views in regard to the proper significa
tion of the term martial law, under the
title La'w Martial. He has also the other
and proper title of Law Military, — or
military law. A careful examination of
these titles, in Col. Scott's Dictionary, will
enable the reader to comprehend the force
and signification of both these terms, and
the proper distinction between them.
In the title " Law Martial," Col. Scott
says; — ''By rnartial law is understood, not
laws passed for raising, supporting, govern
ing and regulating troops; but it is in trUth
and reality, no law, but something irir
dvlged, rather than allowed as law"
(8)

ri-.

I [Halb and Blackstone.] The Comtitih
tion of the United States has guarded
against the effects of any declaration of
martial law within the United States, (*)
by providing 'no person shall be held to
answer for a capital or otherwise infamous
crime, unless on a presentment or indict
ment of a grand jury, except in cases aris
ing 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 offence to be twice put
in jeopardy of fife or limb ; nor shall be
compelled in any criminal case, to be wit
ness against himself, nor be deprived of life,
hberty or property, without due pi!oce,ss of
law; nor shall private property be taken
for public nse without just compensation,'
Art, 6, Amendments. And further, 'In
all criminal prosecutions, the accused shall
enjoy the right to a speedy and public trjal,
by an impartial jury of the state and dis
trict wherein the crime shall have been com
mitted, which district shall have been pre
viously ascertained by law, and to be in
formed of the nature" and cause of the
accusation ; to be confronted with the wit
nesses against him ; to have compulsory
process for obtaining witnesses in his favor ;
and to have the assistance of counsel for his
defence.' Art. 6, Amendments.
Within the United States, therefore, the
effect of a declaration of martial law, would
not be to subject citizens to trial by court
martial, but it would involve simply a sus
pension of the writ of habeas corpus, under
the authority given in the 2d clause of Sec. 9,
of the Constitution, viz : The privilege of
the writ of habeas corpus shall not be sus
pended, unless when, in cases of rebellion
or invasion, the public safety may require it."
In the title Law Military, Col. Scott
says : "Under the constitution of the United
States Congress is entrusted with the crea
tion, government, regulation and support of
armies, and all laws passed by Congress for
those pufrposes are military laws. Congress
being also invested with power ' to make all
laws which shall be necessary and proper
for carrying into execution the foregoing

(.*) See Bouvler's Institutes, yol. 1, p, 91. Sec. 211,
8d paragraph.

58 ^^'

APPENDIX.'

'powers, and all other power's vested by thSt
Constitution in the Govemirient of the
United States, or in any department or offi
cer thereof,' is supreirie in all military mat
ters.' The office of Coipniander-in-C'hief,
intrusted by the Constitution to the Presi
dent," must have the functions first defined
by Congress. 'Such inilitary powers only
as Congress confers upon him can be exer
cised, 'excepting that, being the Comman
der-in-Chief under the Coristitution, he, of
coursfe, '.exercises' al authority Congress may'
delegate to any military commander 'what
ever, by reason of the axiOm that the poWei*
of the greater includes that of the less.
Many of the functiofls thus devolved by
tbe Constiftition on Congress in most gov
ernments belong to the executive. The
King of Great Britain makes rules and ar
ticles for' the governriierit of armies' raised
by him with' the consent Of Parliament;-'—
Congress, With us, both raises and governs
armies. An army raised in Great Britain is
the King's army; with us it is the army of
the United States." ' .
No higher authority than that of Geri.
Scott-— the greatest living general' arid an
accomplished constitutional lawyer — would,
under ordinary circumstances, be deemed
necessar^ to show what martial law, as it
was formeriy understood— and, indeed, is
now understood, where there is no constitu
tional or legal restraint upon the arbitrary
will of the military commander — really is;
or to show that it cannot be legally pro
claimed in the United States.
The following article, copied from "Notes;
and Queries" (vol, 6, London, 18,5^^ p. 582,)
shows that the Duke of "W^elli^gton, the
highest military' authority in England and
the conqueror of Napoleon, l^ad given an
opinion on this topic,,, which concurs with
that pf our own great commander in refer
ence to the. character of martial law. The
article is headed Martial Law, and is as
follows : "Your correspondent .J^, M. A. qsks :
What is martial law: what its powers: its
form, if any? and are all crimes cognizaljle
by a military court when martial law is
proclaimed ? The latest authority on this
head; is that of Right Hon. Sir David
Pundas, Judge Advocate General, undef

the government of Lord John Russell. He
was examined as a witness by the Commit
tee of the House of Commons, which in
1849 sat to enquire into the operation of
martial law during the rebellion of the
previous year in Ceylon. When asked if
there was any definition of the powei-s given;,
when martial law is proclaimedj he answered
that he knew of none. Imreply to a prev
ious question he had stated that -it was.a
common error to confound martial law with. :
military law; the latter being the written
code to be found in the mutiny act and the
articles of war by'which the'land forces, are
regulated, whereas martial law is unwritten,'
and is only the exercise of authority by the
controlling military force during the interval
when, in the judgment of the executive, it
becomes necessary to suspend the ordinary
functidns of the civil 'power. Military law,.
a^pphes to the army alone; martial law em
braces all persons, civil as well as military t ,
— it has no precedents or fixed pradioe,;but
adapts itself to the necessities of the moment
as to form, whilst aiming to administer imp
partial justice. In a newly conquered '
country martial law is the discretion of the
occupying force previous to the establish
ment of civil jurisdiction ; in a disorganized
country it is the substitute for a civil jurisdic
tion for the moment during which the funO''
tions of the latter are paralysed; and, being
the; only protection for life or property^ it is
an object of resort in civil as well as in. miti-. .
tary matters. Perhaps the most grajphJc.-i
description of martial law was that given by
the, Duke of Wellington in the House of...,
Lords, in 1851, on the? occasion of the de
fence of his government of Ceylon, madetbyr
"Viaeount Tof ringtonj viz : that martial la-w
MEANS NO law at ALL bttt the will of thsl
general, till the ordinary law can be either, vi
established or restored."'
Blactstone, (1 Commentaries 413^)' says,
" For martial law, which is built upon no
principles, but is entirely arbitrary in its de
cisions is,, a^ Sir Matthew Hale observes',
(Hist. Com. Law, C. 2,) in truthdnd Reality
no law, but something indulged rather than '
allowed as law. The necessity of oider arid,
disoipHne in an army is the only thirig which ,
can give it cowtenanpe ; and

APPENDIX.

, 59

ought not to be permitted in time of peace,
when the^ King's courts are open for all per
sons to receive justice according to the laws
6f the land. Wherefore^ Thomas, Eari of
Lancaster, being condemned at Pontefract,
15 Edward 2., by martial law, his attainder
was revereed by 1 Edward 3, because it was
done in time of peace. And it is laid down
that if a lieutenant or other that hath com
mission for martial authority, doth in time
of peace hang or otherwise execute any man
by color of martial law, this is murder; for
it'is against magna carta. The petition of
right moreover enacts that no soldier shall
be quartered on the subject without his own
consent, and that no commission shall issue
to proceed within this land according to
martial law."
Hale, in his Pleas of the Crown, gives the
record in the case of Thomas, Earl of Lan
caster, above referred to, and says : " This
notable record, even before the statute of 25
Ed. 3, gives us an account of these things,
1. That in time of peace no man ought to
be adjudged to death for treason or any
other offense vrithout being arraigned and
put to answer. 2. That regularly, when
'the Sing's cou/rts are open, it is a time of
peace in judgment of law. 3. That no man
ought to be sentenced to death by the record
of the king, without his legal trial per
pares.{*) 4. That in this particular the
- Commons as well as i the King and' Lords,
' gave judgment of reversal. " 1 Hale P. C.
347. The provisions of Magna Carta and of
the Petition of Right, thus referred to by
Blackstone, are substantially contained in
the amendments to the Constitution of the
: United States ; and it may therefore be per-
.v.tinentiy asked if Col. Scott is not correct in
iiliis eonclt^ion that martial law, properly un-
Aderstood, cannot exist 'va this country, urider
ithe authority or order of any officer of the
1 IJnited States, or even by act of Congress,
so long as the Constitution of the United
States remains in force ? Was it not intent
ded to restrict the progi-ess of government,
in that direction, by the limits prescribed in
„the constitutional . provision under which
Congress has the power, when; • in cases of
r ebeUion or invasion, the public safety may

require it, to suspend the privilege pf the
•wnt of habeas corpus?,
The broad distinctipn between military
law and martial law, so distinctly traced by
Col. Scott, is fully acknowledged by most
military writers. McArthur in his work on
Courts Martial (4th edition, London,. 1813,
p. 34) says: "The broad line of distinction
between mihtary and martial law has, been
ably defined by the late Earl Roslyn, then
Lord Chief Justice of the Common Pleas,
and afterwards Lord High Chancellor of
England, in the case of Sergeant Grant's
motion, in the Court of Common Pleas,
for a prohibition against the sentence of a ^
general court martial by which he was
adjudged to receive a thousand lashes for
the crime of having been instrumental to
the enlisting, for the service of the East
India Company, of two drummers, knowing
them at the same time to belong to. the
Foot Guards.. His Lordship in delivering
the opinion of the Court on this important
trial entered so learnpdly into the meijts of
the case and marked so nicely the distinc
tion between military and martial law, as
exercised formerly and in present times,
that it may be propei: to give his ideas on
the subject at length as taken from the
Trinity Term Reports, June, lT92."
McArthur then quotes from the opinion
of Lord Roslyn asfollows: "Martial Law,' ,
(said that most able, Judge) 'such as it is
described by Hale, and suck also as it is
marked by Mr; Justice Blackstone, does not
exist in England, at all. When martial
law is established, and prevails in any coun
try, it is of a totally different nature, from
,that which is, inaccurately called martial
law, merely because the decision is by a
court martial, but which bears no affinity
to that, . which was formerly attempted to
be exercised in this kingdom, which was
contrary to the constitution, and which has
been for a < ceni^u/ry totally exploded.
Where martial law prevails, the authority
under which it is exercised claims jurisdic
tion over all military persons, in all circum
stances. Even their debts are subject to
enquiry by a milita,ry authority; every spe
cies of offence. Committed by any person
who appertains tp the' arniyjs' tried ^ot by

(*) That is by jury.

(50

APPENDIX.

a civil jurisdiction, but by the judicature of
the regiment or corps to which he belongs.
It extends also to a great variety of cases,
not relating to the discipline of the army
in those States which subsist by military
powet. Plots against the sovereign, intelli
gence to the enemy, and the hke are all
considered as cases within the cognizance of
military authority.
In the reign of King William there was
a conspiracy against his person in Holland,
and the persons guilty of that conspiracy
were tried by a council of officers. There
was also a conspitacy against him in Eng
land, but the conspirators were tried by
the common law ; an^ within a very recent
period, the incendiaries who attempted to
set fire to the docks at Portsmouth were
tried by the common law. In thiscountry,
all the dehnquencies of soldiers are not tri
able, as in most countries in Europe, by
martial law; but when they are ordinary
offences against the civil peace, they are
tried by the common law courts. There
fore it is totally inaccurate to state martial
law as having any place whatever within
the realm of Oreat Britain''
In the 7th chapter of his work, Mc Arthur
returns to this subject, and says; — " Sir
Edward Coke observes that'if a Lieutenant,
or other that hath commission of martial
law, doth, in time of peace, hang, or other
wise execute a man by color of martial law,
this is murder, for it is against Magna
Carta.' (*) 3 Inst, 52; and Sir Matthew
Hale declares ' martial law to be, in reality
no law, but something indulged, rather than
allowed as law,'' &c., <fea, (fee, and then
says : — " The doctrines laid down by these
great lawyers have, to former systems of
martial law, practiced in this country, but
now more than a century exploded."
De Hart, (Capt. 2 Regt. U. 8. Artillery,)
in his "Observations on Military law, and
the Constitution and Practice of Courts
Martial," published in New York in 1859,
says, ('p. 13): — "But the days when arbi

trary rulers could exert an irresponsible
power for the gratification of personal ob
jects, have passed away ; and the , doubts
which confused, and the fears which en
feebled the minds of individuals or of com
munities, when subjected to the rule of arbi
trary authority which claimed, as it likewise
exercised, the right of disposing of private
and public interests, are dissipated or chased
away by the light and warmth of humane
and liberal government, Under constitu
tional forms, the legislature is the supreme
power of the state, and it is thence in our
country that Military Courts, as well as the
Civil Courts, derive all the power which
they possess for the exercise of their appro
priate functions. Flowing from the same
source and imbued or endowed with the hke
essence of judicial power, the military and
the ordinary courts of civil judicature, within
the spheres of their several jurisdictions, are
deserving of the same regard, and entitled
to a like respect."
Again, (p. 17,) "It must be understood,
however, that the term martial law has a
diff'erent interpretation from that of military
law. Military law, as has been stated above,
is a rule for the government of military
persons only ; but martial law is understood
to be that state of things when, from the
force of circumstances, the military law is
indiscriminately applied to all persons what
soever. The distinction is thus ^pressed
by a writer on military law; — 'Martial
law extends to all persons, military law to
-all military persons, but not to those in a
dvil capacity.'
How and when, under particular con
junctions of the time, martial law may be
declared, and by whom, is not here
consideied; but the proclamation of such
a rule within the limits \ of the Ohited
States, is a very questionable proceeding,
and thought to be an ' excrescence ' not war
ranted or sanctioned by any • distemper of
state." The substitution of this power for
the Civil Courts, subjects all persons to the

(*) This limitation of this doctrine to Wme cf peace,
•eema now to be exploded. The further guarantees of
(ho Petition of Eight and of the BUI of Eights, (passed
In lew. —See Hurd on H«b. Cor., p. »0.) hart Vod th*

later authorities, as we shall see, to deny entirtly the

in war.

APPENDIX.

61

arbitrary will of an individual, and to
imjnisonment for an indefinite period, or
trial by.a military body. Of such impor
tance to the public is the ^preservation of
personal liberty, that it has been thought
that unjust attacks, even upon life or pro
perty, at the arbitrary will of the magistrate,
are less dangerous to the commonwealth
than such as are made upon the personal
liberty of the citizen.
Now, to guard against such abuse, the
constitution guarantees the privilege of the
writ of habeas corpus, which it declares,
' shall not be suspended, unless when in
cases of rebellion or invasion, the public
safety may require it,' and the intervention
of Congress is necessary before such sus
pension can be made lawful. Such, too, is
the doctrine of the British constitution,
where the Crown, invested with high pre
rogatives, is yet most scrupulously restricted
in all that relates to the liberty of the
subject. In commenting upon this part of
the laws of England, Mr, Justice Blackstone
says, ' but the happiness of our constitution
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, (the ar
bitrary imprisonment of persons) expedient;
for it is the parliament only, or legislative
power, that, whenever it sees proper, can
authorize the Crpwn, by suspending the
habeas corpus act for a short and limited
time, to imprison suspected persons without
giving any reason for so doing.' As the
promulgation and operation of martial law
within the limits of the Union would nec-
eessarily be a virtual suspension of the
habeas corpus writ for the time being, it
would consequently appear to stand in
opposition to, or be in confiict with, that
provision of the constitution above cited.
As the army, as has been above stated, is
established by the highest power in the
State, with 'a definite shape and legal
existence, it must therefore be received and
acknowledged as a constitutional body.
From the moment it became an organ of
legislative creation, it likewise became an
object of legislative control ; and hence the
institutions intended for its government, are
derived from the same source-as those which
aff«et t^e mass of the community."

O'Brien, another of our military writers
of acknowledged authority, treats the subject
more at length. He says, (O'Brien's Military
Laws: Ptila, Ed. 184:6. p. 26:) "Many
erroneous notions and much unfounded
prejudice in regard to military institutions,
have arisen from confounding military with
martial law. The popular opinion seems
to be that these are but two names for the
same code. Nothing can be further from
the truth. Military law is a digested system
of enactments, carefully made and dehber
ately confirmed by the supreme legislative
authority of the commonwealth, and pub-
Hshed for the observance of a body, known
to the constitution, and created and sustained
like any other executive organ of the
country. Martial law is something very
different from this. As Blackstone truly
remarks, ft is in fact, no law. It is an
expedient resorted to in times of public
danger, similar, in its effect, to the appoint
ment of a dictator. The general, or other
authority charged with the defence of a
country, proclaims martial law. By so
doing, he places himself above all law. He
abrogates or suspends at his pleasure, the
operation of the law of the land. He resorts
to all measures, however repugnant to
ordinary law, which he deems best calculated
to secure the safety of the State, in the
imminent peril to which iL is exposed.
Martial law, being thus vagu 'and uncertain,
and measured only by the danger to be
guarded against, exists only in the breast of
him who proclaims and executes it. It is
contained in no written code. It bears,
therefore, no analogy whatever to military
law, and should ever be carefully distin
guished from it. Despotic in its character
and tyrannical in its application, it is only
suited to those moments of extreme peril
when the safety and even existence of a
nation depends on the prompt adoption and
unhesitating execution -of measures of the
most energetic character. That such cases
do arise, all history attests; and that popular
governriients are illy calculated to meet
them, it would be vain to deny. At such
periods, republics especially, require some
prompt mode of suddenly drawing out and
instantaneously applying the whole energies
of the people , From the principle of self-

62

AppiiiDrx.

preservation, the constitution of the United
States has wiselyi' and indeed, necessarily,
permitted the proclamation of martial law (*)
in certain specified cases of public danger,
when no other alternative is left to preserve
the State from foreign invasion or insurrec
tion." Again, (at p. 30,) after referring to the
constitutional provisions which empower
Congress to raise and support armies and
make the President the Commander in
Chief of the Army, O'Brien says:— "The
eflect of these provisions is, that Congress,
after raising and equipping an army, can-
hot use it against the liberties of the Coun
try because it can neither command it, nor
appoint a commander tp it. The President
can do nothing detrimental to the pubhc
safety, for Congress may, at any iridnierit,
strike from his hands the instruflient he is
misusing. Independently of this, any mil
itary cOmmarid, contrary to law, is null and
no military officer dare obey it under pen
alty Of punishment by a civil or inilitary
court. In all that relates to the raising of an
army, to its strength, to its organization, to
its criminal code. Congress is omnipotent';
the President, powerless. The same re
mark apphes to the fiscal concerns of the
army. Anything which involves expense,
must directly or indirectly come under the
control of Congress. This prerogative of
command, so formidable in appearance, will
in practice be found to be very limited;
hemmed in and contracted as it may alwiays
be, by the positive or negative action of the
legislature. The command of the President is, in
deed, absolute -within its sphere, but' its
sphere is bounded on all sides by law. The
moment the executive pversteps the boun
daries prescribed, he becomes powerless and
his commands are of no force. Congress
may declare when and for what objects the
army ii to be used, and fpr what purposes
it may not be used, and thus chart out
accurately the limits of executive power.
And even within these limits the action of

the executiye indirectly but absolutely de
pends on the concui-rence of Congress,
which must appropriate funds 'for the pur
pose, befbrS'even a corporal's,gterd'can be
moved. So contracted is the actual authority of
the President, that, but for the protective
power Of his qualified veto, his tomriiand
might be so restricted by legislation as to
destroy its utility. It is in the pOwer of
Congress not only to protect itself, but to
embarras the action of the executive at
every step. It may 'prohibit the approach
of troops within a certain distance from the
Capitol, — it may raise trOops for a spledal
'service, such as to garrison a particular fort
or to operate in a partidular' district' 'and
may declare that this corps shall serve no
where else. In none of these or similar
cases, dare the President overstep the limits
pres6ribed. The only effect of his illegal
order would be to ' subject to punishment
the officer who obeyed it. As commander
iri chief the President may issue to the
army any military commands or orders
whate'V^er, provided they be not illegal. —
These orders are of binding force on those
to whom they are given, not merely by
'virtue of law, but iri 'consequence of the
article of the Constitution appointirig' him
supreme commander. Still it is eqiially
true that these commands could not be en
forced except by the dismissal of the offend
er, without the action of the legislature;
for it alone can constitute tribunals f^ the
trial of offenjde'rs and can annex ^pvinishr
ment for crimes. The President's |)bwer
extends "nO further than removal from
office or s'uspension from duty.
As the executive has no legislative p'Ower,
it is plain the regulations issued by him to
the ai'riay are not lavv ; and as he 'is as
niuch bound by law as any other citizen it
follows that if any of them conflict, with
law they are so far null" and void;' other
wise they are constitutionally binding as
military commands. The army therefore
is subject to action fr'oiri two distinct sour
ces, the executive and the legislative, arid it

(¦*) O'Brien Ihero .probably refers'Fto'the priDTision
which regulates and limits the suspension of the privil
ege Of the writ of hobeae cmpns, which suspension is
ordinarily one of tha incldentaof the existence of mar-

tiallaw. It ia believed tjiat there is i>o oth^r igj-pvision
of the constitution whioli can possibly be supposed to
authorize tho declaration of indrt!fal'.-lKw^.^fo-M'''many,
I particularly in the amendments, which forbid it.

APPENDIX.

63

is important, that their respective powers
should be traced out.''
In Lamb's case, Judge Bay recognized
the definition of martial law given . by Mr.
Justice Derbigny in Johnson vs. Duncan,
&C., and said : "If by martial law is to be
underetood that dreadful system, the lau^ of
arms, which in former times was exercised
by the King of England and his Lieuten
ants, when his word was the law and his,
will the power by which it was exercised, ,1
have no feesita.tion in saying that sjich a
monster, could not exist in this land of
hberty and freedom. The political atmos-
pheraof America would destroy it in em-
bryoL It was against such a tyrannical
monster that we .triumphed in our Revolu
tionary conflict. Our fathers sealed the
conquest by their blood, and their posterity
will never permit it to tarnish our soil by
its unhallqwed feet, or harrow up the feel
ings of our gallant sons by its ghastly ap
pearance. All our civil institutions forbid
it; and the manly hearts of our cpuntrymen
are steeled against it.
But if by this military code are to be un
derstood the rules and regulations for the
government of our men in arms, when mar
shalled in defence of our country's i:ights
and honor, then I am bound to say there
is nothing unconstitutional in snch a sys
tem." Note to Martin's La. Reports, (con-
densedEd. by Harrison,New Orleans,1839,
Vol 1, pages. 169, 170. And see the
Opinions of Judges Martin and Derbigny,
quoted. ante^. 18 — 21)
Mr. Attorney General Gushing, in an of
ficial opinion furnished at the 'request pf
the late Governor Marcy, then (1857) Sec
retary of War, in consequence of the unau
thorized declaration of martial law by the
Governor of the Territory of Washington,
discussed this subject (See 8th Vol. of
Opiriions of U. S. Attorney Generals, p. 365
to 3,74) with his accustonned ability.
In'iregard to the questions, ''What is mar
tial iaw ?" "What is meant by the procla
mation pf martial law ?" "Who has power to
declare martial law ?" "How does such a state
exist lawfully, and wh^t are the eff'ects pf its

existence ?" — after exz^mining and criticising
the Englisli authorities — he, says: "Martial
law, as exercised in any country by the
commander of a foreign army, is an element
of the-^Ms belli. (*) It is incidental to the
state of solemn war and appertains to the
law of nations. The commander of the in
vading, occupying or conquering army, rules
the invaded, occupied or conquered foreign
country with supreme power, limited only
by international law, and the orders of the
sovereign or government he serves pr repre- ,
sents. . For by the law of nations, the occu-
patio bellica (f ) in a just war transfers the
sovereign power of the eneimy's country to
the conqueror. (Wolf's Jus. Gentium, sec.
863 5 Kluber, Droit des Gens, sec. 253 ; Gro-
tiu.s De Jure Belli et Pacis Ed. Cocceii, lib.
III. Cap. 8.)
Such occupation by right of war so long
as it is military only, that is, flagrante
bello, (J) will be the case put by the Duke
of WeUington, of all the powers of govern
ment resumed in the hands cf the Com
mander-in-Chief. In any local authority
continue to subsist, it will be with his per
mission only, and with ppwer to do nothing
except what he, in his plenary discretion, or
his own sovereign through him, shall see
fit to autliorize. The law of the land will
have ceased to possess any proper vigor.
Thus while the armies of the United
States occupied different provinces of the
Mexican Republic, the respective Command
ers were not limited in authority by any
local law. They allowed, or rather required
the magistrates of the country, municipal or
judicial, tp continue to administer the laws
of the country among their countrymen, —
but in subjection always to the military
power, which acted summarily and accord
ing to discretion, when the belligerent inter
ests Of the conqueror required, it, and which
eiercised jurisdiction either summaril}*, or
by means of military commissions, for the
protection or the punishment of citizens of
the United States in Mexico.
That, it would seem, was one of the forms
of martial law ; a violent state of things, to
cease, of course, when hostilities should

(*) Law of war.
(t) Military ooeupation by right of war.

(t) While tbe -war is raging,

64

APPENDIX.

cease, and mihtary occupation be changed
into political occupation. [Elphinstoie vs.
Bedreechand, 1 Knapp's Rep., 338; Cross
vs. Harrison, 16 Howard Rep., 164.]
But these are examples of martial law,
administered by a foreign army in the ene
my's country, and do not enlighten us in
regard to the question of martial law in
one's own country, and as adfliinistered by
its Military Commander. That is a case,
which the law of nations does not reach.
Acccordingly in England, as we have
seen, Earl Grey assumes (*) that where
martial law exists, it has no legal origin, brit
is a mere fact of necessity, to be legalized
afterwards by a bill of indemnity, if there
be occasion. I am not prepared to say that,
under existing laws, such ta'ay not also be
the case in the United States." * * *
Farther on Mr. Cushing says: — "I say
we are without law on the subject. The
Constitution, it is true, empowers Cori-
gress to declare war; to raise and support
armies; to provide and maintain a navy;
to make rules for the government of the
land and naval forces; to provide for call
ing forth the militia to execute the laws of
the Union, suppress insurrections, and repel
invasions; and to provide for organizing,
arming and disciplining the militia, and for
governing such part of them as may be
employed in the service of the United
States. But none Of these powers has been
exerted in thasolution of the present ques
tion. * '
In the amendments of the Constitution,
among the provisions of general right which
they contain, are some, the observance of
which seems incompatible with the existence

of martial law, or, indeed, any of the sup-
posable, if not necessary incidents of inva
sion' or insurrection. But these provisions
are not sufficiently definite to be of practical
application to the subject matter.
In the Constitution there is one clause of
more apparent relevancy, namely, the dec
laration that 'The privilege of the writ of
habeas corpus shall not be suspended, unless
when iri cases of rebellion or invasion the
public safety may require it.' This nega
tion of power follows the enumeration of
the powers of Congress; but it is general
in its terms; it is in the section of things
denied, not only to Congress but to the
Federal Government as a government, and
to the States. I think it must be consid
ered as a negation reaching all the func
tionaries, legislative or executive, civil or
military, supreme or subordinate, of the
Federal Government; that is to say, that
there can be no valid suspension of the writ
of habeas corpus under the jurisdiction of
the United States, unless when the public
safety may require it in cases of rebellion
or invasion. And the opinion is expressed
by the commentators on the Constitution
that the right to suspend' the writ of habeas
corpus, and also that of judging when the
exigency has arisen, belong exclusively to
Congress. [Story's Comm. 1342, Tucker's
Bl vol. 1, p. 292.]
In this particular, as in many others, the
Constitution has provided for a secondary
incident, or a single fact, without providing
for the substance or. for the general fact ;
just as when it gives power to estabhsh
post roads, but says nothing of the trans
portation of the mails. It does not say

' 4, (*) This refers to a previous part of his opinion,
in which Mr. Gushing, after referring to a debate
in "parliament, in 1824. occasioQed by the trial
of a .missionary before a Military Commission,
says; — "There is a later debate, — that on the
proclamation of martial law in Ceylon, by its
Governor, the Earl of Torrington, — in which
Earl Grey, in accordance with the advice of Lord
Cottenham, Lord Campbell and Sir J. Jorvis -(f)
said: — '"What is called proclaiming martial law
is no law at all ; but merely for' the Sake of pub
lic safety in circumstances of great emergency,
setting aside all law, and acting under the mili

tary power ; a proceeding which requires to be
followed by an act of indemnity when the dis
turbances are at an end. (Hansard S series,
vol. OXY, p. 880.)"
(t) As Lord Cottenham, Lord High Chancellor of
England; Lord Campbell, then Chancellor of the
Duchy of Lancaster, and afterwards Chief Justice of
the Queen's Bench, and Lord Chancellor ; and Sir John
Jervis, Attorney General, and afterwards Chief Justice
of the Common Pleas, gave this advice, and as Earl
Grey, the Secretary of State, doubtless had the oon-
cuiTing opinions of his colleagues in the Cabinet, and
of the Law Officers of the Crown— who are always con
sulted on ,such occasions — this may be considered as set
tling, upon the very highest authority, the law of Eng
land upbn the subject.

th^t; martial law shall tipt ^xist,(*) unless
when the public safety may require it in
cases of insurrection or invasion, but only
that the writ of habeas corpus shall not be
suspended except in such circumstances.
But if the emergency of insurrpetion or
invasion, involving the public safety, be
requisite to justify the suspension of the
writ of habeas corpus, surely that emer
gency must be not the less an essential pre
requisite of the proclamation of martial
law, and of its constitutional existence.
,We have in Great Britain, several recent
examples of acts to give constitutional ex
istence to the fact of martial law. Onp is
the act of Parii.-iment of the .3d and 4th
Geo. IV., Ch. 4, designed for, the, more
etfeetual suppression of local disturbances in
Ireland. Another act of the same nature,
that of 67, Geo. III. c. iii., was fpr the case
of apprehended insurrection 'in the metrpp-,
olis and many pther parts of Great Britain/
which act was followed the next year by the
indemnifying act of 58, Geo. III. ch. vi. —
These examples show, that, in the opinion
of the statesmen of that country, the general
fact of the existence of martial law and its
incident, the suspension of the writ of
'habeas corpus, alike reiquire the exercise df
the supreme legislative authority. — -Black
stone's Oom., Vol. 1, p. 186. Coleridge's
note. Bowyer's Const. Law, p. 424.
That idea pervades the constitutional o^
ganization of the several States of the Union.
Thils, in Massachusetts, it is provided that
the writ of habeas corpus 'shall not be sus
pended by the legislsture, except upon the
most urgent and pressing occasions and for
a linrited time.' In- other States, while the
exigency for the suspension of the wiit is
defined, as in New York, the suspending
authority is not specified. In others, there
is express general provision as to the sus-
. perision ofrlaws without specifying the -writ ;

APPEljfpiX. 7-:the genoj-al pow

of,

being

ef ot .suspciiisipn
,cpnfided.to the legislktiye, as in Maryland^
Yii'ginia and Tennessee. .The State', of
Pennsylvania has both prpvisionsiri its con
stitution. And it|may^ be assumed, as a
general doctrine pf constiltufional jurispru
dence in' all the, United' States, that the
power to suspend laws, whether those gran l-
ing the writ of habeas -corpus, or aiiy other
is vested exclusively in the legislature of th'-,
particular State. '
How intimate the relation is, or may be
between the proclamation of martial law and
the suspension of the writ ot habeas corpus,
is evinced by tbe particulfjr fac'ts of the case
before me, — it appearing, as well by the re
port of the' Goverrior as by ''that of' Chief
Justice Lander, that > the, very object for
which martial law w;is jjmclaimeti was to
prevent the use oi' the writ 5ui;behalf of ob
tain persons held in confineinent i by the
military authority,, on the,charg« of treason
able intercourse with Indians. : That, how
ever, is but one of the consequences of mar
tial law, ana by no riaeans the lirgest or
gravest of these! consequences, '."iince, accord
ing to every definition, of miartial law, it
supercedes, for the time being, all the. laws
of the land and sitbstitutes in their place,uio
law,^that is, the mere will of the -rriilitajv
commander. "• . '
There may undoubtedly be, and have
been, emergencies of necessity, jcapableiof
themselves to produce, and therefore to
justify, such suspension of all jaw,,!^n(i ipvolv-
ing for the time, tl^e omnjpotence.of military
power. But sucT^ a necessity is not of the
rcinge of mere Jegal questions. Where
martial law is,' proclaimed under cifcujn-
stances., of assumed necessity, theprodai^a-
tion must be regardedas thestaterneni'Of an
existirijg fact, rather than the legal, creation
of that fact. In a, beleagu red, city, the state
pf siege , .lawfully exists^' because 'the city is

1- (f). TM amendments to! the Conjtitijtfpni to ^hic^
I'eierence^ has been, made in the preceding pages, do
sar, im effect, that martial law- Shall liot «fefftt ; because
, ,it cannot«xi^t without, repeated Tiojaitions of the pro-
'Tisibns of those amendments. ' Scott, and' others have
'therefore properly assumed that it cannot exist in this
eountry, undei; the authority (rf the government df the
"United StatesJ and ititf clearit' '(ianliot eiist consist
ently, with the lirovisions of the amendments referred
'' '*rh^ oonstitutiohar^rant of ; power tdColigreSis "To
establish post offices and post roads," Isj not like tlie
(9)

prpvision in regard to the suspension of, thftpriyilpge
of the habeas corpus. The latter provision is full and
speeial and defflttl-te, and nothiag is necessary to be
implied to pake it eptjrely effocfive; but "to establish
post o'fflces and post rbids*^ without pro-vidin'g'for thH
transportation ot the. mails -fcould.be entirely useless.
To make these post, offices and post, roads Ojf wny the
least service or value, Other thinWrare neoessatily
required,, and, therefore,'ithis general grant, of power is
held to include the power necessary to carry into use
ful' operation the -poiwe): tapre*ly granted.l , ; , , ,

86

APPicNDIX.

beleagured; and the proclamation of martial
law, in such, case, is but notice and aiithen-
tication of a fact — that, civil aulhprity has
become suspended; of itself, by the force'of
circumstances, and ithat by the sauie force
of circumstanqes iKe . military piower ' has
liad devolved ' upon it, without having
authoritatively «issuined, the supreme con
trol of affairs, in the care of the public safety
and conservation. '
As tp the .present, case, tl^erefore, it suf
fices, to say, that, the power to suspend the
l^w.s anjd, tp substitute the military in' the
place of the, civil authority, is; npt a power
within the legal attributes of a Governor of
one ot' the Territories of the United States."
In the debate in the HouSeof Commons,
in 1824, upon the case, of the Missionary,
in Demeraia, Lord Brougham, [Brough.arn's
Social andPoKtical Speeches, vol. 2, p. 128.]
— lifter referring to the atrocious proceed
ings against the Missionary and his trial
by court martial, said:; — *' 1 know that the
general answer to all which has been hither
to alleged oU' thisisubjeet- is, that martial
law had been proclamed in Demerara.,.
Biit, -Sir, I do. not prof ess to understand,
as a lawyer, martial law of such a, des
cription; it is entirely unknown to the law
of England, — I do not mean to say in the
.bad:times,of our.history, but in that .more
recent period which is called -GonstitHtipnal.
It is Very true, -that formerly the Crown
sCiittjtihies issued proclamations,' hy virtue
' of which civil offences were tried before mil
itary tribunals. The most remarkable in
stance of that description, and the nearest
precedent to the case under our considera
tion, was tbe *ell known'* proclamation' of
thiit august,' pious, and humane pair, Phihp
aiid Mary, of happy' memory, stigmatizing
as rebellion, arid as 'an 'act -Which should
subject the Offendel^ to be ti-ied by a Court
Martial, the having heretical, that is to say,
¦Pi'.otestant books in one's possession, and not
giving them up without previously reading
them,,' Similar proclamations, although riot
so extravagant in their character, were issued
by Elizabeth, by James the First, (and of a
less violent nature,) by OhariiSs the First;'
until ati length the evil .became so unbear

able that' there arose from'il" the celebrated
!P'etition of Right, 'due of the |be.st legacies
left to his Country by that illustrious law
yer, Lord Coke; to whom efeVy man' "that
ioves the Constitution, owes a debtof grati-
'lude which increasing venera,tibn" for his
memory can riever pay. The'Petitiori pro
vides that ail 'such' procedings shall thence
forward be'put dowii; it declares ''' that no
man shall be forejudged of life or limb
against the form of the Great Charter;^
that hp nian ought to be adjudged tod.eath,
but by the laws 'established in this realm;
either 'by' the custom of the realm,' or by
Acts of Pariiam'ent;' and, 'that the com
missions for proceeding by martial law
should Jae revoked and annulled, lest, by
color of them, any bf his Majesty's subjects
be destroyed or put to death, contrary to
the laws and Statutes of the land.' Since
that time no such thing as martial law has
been recognized in this country; and courts,
founded on proclamations of martial Jaw,
have be'en wholly unknown."
Sampbl, in his Historical .Account of
THE .British Army, and of the Law Mii-
.iTAUT, (London, 1816,) says, (p., 201); —
" In, eveiy mutiny act, from the 1st of Wil
liam and Mary, to the 55th pf the King,
it. is expressly declared that the subject gen
erally is exempt and wholly free from the
operation of martial law, and of the judg-
mentof any .other than his peers, under the
knpwfn and established laws of the realm;
and. I that in tbe matters in which the act is
about to alter thp condition of the soldier
from that, of the ordinary citizen, it goes
entirely on the ground of enforcing the
military dutieS(,9,nd exact discipline; and
of punishing in a more summary way'tlian
the common law autljorizes the peculiar
ofl'ences of soldiers." . .,
In Luther vs Borden (V HoWard'« Em),
S. C. U. S.^ p. 1, 69—88,) Mr. Justice
Woodbury discussed at considerable length
this question of martial law. At p^ge,62
he Says : "By it, every citizen, instead, of
reposing under the shield of known and
fixed laws as to his liberty, property and
life, exists with a rope round his neck, sub
jec»to be hung up, by a military despot, at

APPENDIX.

67

the next lamp-post, under the sentence of
some drum-head conrt martial. (See Sim
mons' Pract. of Courts-Martial, 40.) See
such a trial in Hough on Cpurts-Martial,
383, where the victim was ' blown away by
a gun,' ' neither tinae, place, nor persons
considered.' As ari illustration how the
passage of such a law may be abused
Qrieeri Mary put in force in 1588, by ^roc-
larnation merely, and declared 'that who
soever had in his possession any heretical,
treasonable, or seditious books, and did not
pi-esentiy burn them without reading theiri
or showing them to any other person,
should be esteemed a rebel, and without
any further delay be executed by the mar
tial' law.' Ty tier on Military Law, p. 60,
c. 1. 31.
For convincing reasons like these, in eve
ry country which makes any claim to
political or civil liberty, martial law as here
attempted, and as once practiced in Eng
land against her own people, has been,
expressly forbidden there for near two cen
turies, as well as by ihe principles of every
other free constitutional government. [1
Hallam''s' Const. Hist.. 420. ] And it would
be not a littie ejjLtraordinary, if the spirit of
our institutions, both State arid National,
was not much stroriger than in England
against the unlimited exercise of martial
law over a whole people, whether attempted
by anv chief magistrate, or even by a legis
lature'" ¦ And again (at page, p9) Mr, Justice
Woodbury says: "It Tvould be .alarming
enough to sanction here an unlimited pow
er, exercised either by legislatures, or the
executive, or courts,, when all our , gpvtsrn-
menta are themselves governments pf liipit-;
ations and checksj and of fixpd and, known;
laws., and the people a rape atioye ;all, Others.
jealous of encroachments by tho^^ in power.
And, it is far Tietler that tbose perspns
should be without the, pi;©tection pf the
ordinary ,laws of the land who disregard
them iil, an emergency, and should look to
a yratefiil pountry for indemnity and, par
don, than to 'allpw, beforehand, the, h'ttjpe-
woi'ls of jurispr^udencp tp.be overturnedj ^nd
eywything placed at the mercy, of the;bay-
oqei. . ...

JVb, tribunal or department in our sys
tem bf governrfients ever cd'k be lawfully
authorized to, dispense with tl\e laws, like
some of ths tyrannical Stuarts, or to re-
pe'?.l, or abolish^ or suspend the whole body
of them, or, in other words, appoint an
unrestrained military dictator at the head
of' armed men. , , ,
¦VVTiatever stretches of such' power may
be ventured on in great crises, they cannot
be upheld by the laws, as they prostrate
the laws and ride triumphant over and^
beyond them," &,c.^
And again, (p. 83,) "my impression is
that a state of war, whether foreign ov do
mestic, may exist, in the great perils of
which it is competerit, under ite. rights and
on principles of national law, for a com
manding officer' Of troops under the con
trolling government to extend certain rights
of war ' not Only over his camp, but its en
virons, and the near field df his military
operations, (6 Atrierican Archives, 186.)
But no farther nor Wider, (Johnson vs. Davis
et. al, 3 Martin, 530, 631.) Ori this tested
the justification of one of the great com
manders of this country, and of the age, in
a transaction so Well known at New Orieafas.
But in civil strife they are nOt to extend
beyond tbe place where instfrrection exists,
(3 Martin, 551) iidr to portions of the State
reriaote from the scene of military operation?,
nor after the resistance is over; nor to per
sons riot connected with it; (Grant vSj
Gorild, et. al, 2 Hon. Bl. 69.,) nor even
within the scene, can they* extend to the
pei-sori or property of citizens against whom
no probable cause exists which may, justify
it; (Button vs. Johnson, 1 D. & E.' 549.)
iior to the property of any person, without
necessity or civil precept."
Arid again, (p. 65,) "Having thus seen
that martial' law, h\et\im,'t^ng\iis, Over 'a"
whole people and state, Vas ' not by ' dril^ '
fathers, considered proper at all in peaCe', 'dr''
(liiring civil strife, and that iri th'e'cMHt^f' '
from which 'i*e derive -most of orir'ju.ris^-'l
prudence, the- King has lon^'lie'eti'fdi'liidtfdti'l
(d put if^ in force in ''^ar '6{' 'pekM'mW'tMAt '
Parliament hever, iri ' ttS "^ds1! ^WkW^'cfAlseS' '
of rebellion, allo^'litAs:bept''a*"bd?^g''3o|^^-;''
reign 'limd 'unli'iWiiied'' iti pdWer, 'arid'"iiiiOTr ¦
peculiar re8t"ild^(toSi""«e."'"""'' '"'" '"' •'""'

Ap'i'KSttlX.

In the laie publication pf the Hon.. B. F.
Curtis," (formerly a justice of the Supreme
Court of the, United Stales, and whichplace
he resigned "a. fe'w years si'rice,) he says ;—
"Are, the great principles, of free gpver'nirient
to be used^and cdnsiimed as. means. of war?
Are we not wise enough and strong enough
to carry on this war to , a successful military
end, wit'hput submitting tp the loss of any
one" g'reat principle of liberty ? We are
strong enoygh. We are wise enough, if
the people and their servants will but under
stand and observe the iusf limits 'pf military
''i fli.l---. ,H(ll!i -. ¦ ¦¦' •;'.(.;, ¦
power. '
-i ,W|jat, then, are -.those limits? . They are
th,^8e.^,,,rCl^ere is military law; there is mar
tini,! la\^,' Military^ iavi is that, sysfeifl pf
law^.enapted by the, legislative power,fpr the
goyernment of the ^rrny ,a,n<il,;n,avy of ;tlie
United States, 8,^4 of the JBilJM* wfaj^in .called
into the .actVKil sei-vice of the Upite^^ Stales.
It h^s no ,<;p^,ti-pl whatever over any person
or any 'property,; of any citizeo. It|P0ul4,
npt, even apply to the teamsters of an army,
sa,yp,,by force ,of e:;cpress provisions of the
l^ws, of Congress, making suo'h, persons
amenable thereto. The persons and the
property pf, private ..citizens ,of the. United
States, a^e as absolutely exempted from the
cpntrol of military law as they are exempted
frqm- t^i^ pontrol of tfop laws of Great
Britain. , , ,'j.r,i. , ,,
Biit there is alsp M^irtifiil law.. What, is
t^iis ?, l^t is thp will pf a piilitary pommander,
operating without any .restraint, sav^, his.
jif3gji:Mnt»,,^^P°'^ ^.^e lives, upon th^ property,
npf^p^the eptiresociaji jmd individual condi
tio)} jc^ all, ojjprjwliom thelayir ej^tep4s> But,
u|i^^' tl),e Cpijstitutipn pfthe Unite^' States,
over whom doefe suph. Jaw. extend,?^,, -.Will
aflXhP"?,,]^? -MA. ¦*l°''VgtL ^\ say,,in.vie,'w, of
the.|]biistory, pt pur ^ijicestprs, ,and ourselves,
t^'^t,t^?l P|''^?'49l)t of ifljie WBite(i. ,i^tates can
exfpn.d, suql^ |law; a|s, .tl^s^t I pyp^' tJ?P entire
coMPitvy, ,6r! PY,er ifjuy'^s^n^^ , gepgraplfipftl
pat;ti,th^i;epf(,say;e,,in ppflnpctipn with spnie,
p(^rti(Jular (iflijitaryipp^r^tipfl^l wliich lip,, is
c^r,:^ypijg,,pn .there? .„.Sii?f5e,,,,0,VKles, Ljpst.
his,^e,a4«.tli^i:e lias been.nfl Ijingiin, England
wi^p,, could „piakfi. ?ucb ,Ja^y„i,n , tjjattirp^lm
-Afl<^i?yi^mJ*i*fib ^R bfi.f9,Wf?.iiii»i Wr ]ii^
tory, or our conBtitflt!i,OP,%i,«iit|l«e,!l;,.St^t«liflv

natidnal, any ' warrant for. 'saying, that a
President k the'United States has been
empowered by the' Cpnstitntiori to extepd
martial la'w'bver the whole country, and to
subject thereby to his m'ilitary pewer, eypiy
right ot every ctizen ? He has no such ail-
thority. , . ' ,^ .,
In time of war, a mihtary commarid?^';
whether he be the, coipmander-in-chief, ojf,
one of his subordinates, must posses, and
exercise ppwers both ova- the persons ,a' d
the property of citizens which,, do, not exist
in time of peace. But he possesses and
exefpises suc;h ppwers, not in spite of the
Constitutionand laws p/ the United States,
or, in dex,ogation from their authority,^ but
in virtue thereof and in strict subordination
thereto. The general who moves his army
over private property in the course of his
operations in the field, or who impresses
into the public service means of transporta
tion, .or subsistence, to enable him to act
against the enemy, or who seizes persons
within his lines as spies, or destroys supplies
in immediate danger of falling iiito' the
hands of the priemy, imes authority unknown
to the Constitution and laws'pf the United ,
States in tinap of peace ; but not unknpwn
to that Coristitution and those laws in time
of war. The power to declare war, in
cludes the ppwer to use the customary an^d
necessary riiearis effectually tp carry it on.
As congress may institute a state oi war, it
riiay legislate into existence and place under
executive control the means for its'prosecu- _
tion.' Arid,' in time of war without any
Special legislation, not the commander-in-
chief only, bnt every commander of an eX- '
pedition, or of a military post, is lawfully
euipOwered by the Constitution and law^ of
the United States tO do whatever is nedes-
saiT, and is sanctioned by the laws of war,
to accomplish the lawful objects of his com
mand. But it is obvipus that this imjjlied
authority must find eariy limits somewherei
If it were admitted that a commanding',
geheral in the field might do whatever in
bis' diseretion might be necessary to subdue
the' eriemy, he could levy contributions to
pay his 'fiO'ldiers; he' could force conscripts
into his service; he could drive out of the
Entire country all persons not desirous to aid

APPENDIX.

6£f

him; — in short, he would be the absolute
master of the country for the time being.
No one has ever supposed — no one will
now undertake to maintain — that the com-
mandei-rin-chief, in tirtie of ' war, has any
such la'wful authority as this.
What, thru, is his authority over the per
sons , and property of citizens ? I answer,
that, over all persons enhsted in his forces
he has military' power and command; that
over all persons and property within the
sphere bf Ms actual operations in the field,
he may lawfully exercise such restraint and
control as the successful prosecution df his
particular military enterprise may, iri' his
honest judgment, absolutely require; an-l
updi!^ such persons as have committed of
ferees against any article df wairi hd may,
through appropri'ate military tribunals, in
flict the punishment p'reSciibed by law.
And tTiere his Idwful authority ends.
The military power over citizens and their
property is a power to act, not a power to,
prescribe rules, for futwre action. It springs
from present pressing enaergencies, and' is
limite.d by them. It cannot assume, .-,the
functions of the statesman or legislator, and
make provision for future or distant arrange-.
ments by which persons or property may be
made subservient to militai-y uses! It is the
physical force of an array in the field, and
may control whatey.er is so hear as to be
actually reached by that force,, in order to
remove obstructions to its exercise.
But wheij the jnilitary commander con
trols the persons or property of citizens, who
areljeyond ,the sphere of his actual i opera-
tions,-in the field, when he makes laws to
govern, their conduct, he, becomes, a legisla
tor. Those ,l^ws rnay, be mfido actually
operaiti,ve ; pbedience to them i,nay be en .
forced by military power ; : their purpose and
effect may, be solely to recruit or support his
armies, or to weaken the power of the enemy
with whom be i.s cpntendiug. But he is a
legislator still; and whether his edicts are
clothed ,in the fprm pf proclamations, or of
mihtary ordei's, by wha,tevsjii; name they may -
be ^called, they are Ijiws, , If he have the
legislalive iiower conferred on him by the
people, it-is- well. If not, he usurps it.
He has no more lawful authority to hold

all the citizens Of the entire couritry, out-'
side of the sphere of his actual operations
in the field, amenable to his military edicts,
than he has to hold ?ii\ ihe property of the
country siibject to his militai-y requisitions.
He is not the militaiy commander of the
citizens of the United States, but ot its
soldiers."' When, in 1850, the Convention to amerid
the Constitution of the State of Ndw' Hamp
shire, had under coflsideration article 34 of
the proposed Bill of Rights, in the fdllow-
ing words';^ — "No person can, in any case,
be subjected to law martial, or to any pains
or penalties by virtue of that law, except
tho'se employed in the army or na^'y, and
except the military in actual service, but by
authority of the' legislature," Judge Wood
bury, then an Associate Justice of the Su
preme Court of the United States, and a
member of the Convention, moved to strike
out ' but by authority of the legislature,'
which, he said, "authorized the legislature to
apply the law martial to citizens in private
life; and he would allow no legislature to
apply to him' the cat, at" the drum's head.
This could riot be done withorit abolish
ing the whole constitution; and tbe power
was not necessary. It would not be tolera
ted, fjxcept in cases of war; and scarcely
then, dven in the army. He spoke of the
law martial separate froin the military
code. The fact was there was no law
manial. It was no law. It was a con
tempt of law. If we ever get into such a
'State of .society that awy man must be tried
'at 'the drum head b.y a court martial", the
'foundation df society was brOken up. This
power belonged to the general government
¦in time of war, if anywhere; but they had
never dreamed of applying the lavi/ martial
to pei'sons in civil and private life."
" The m,otion prevailed unanimously." ]
Woodbury's Writings, pp. 485, 486.,
Some of theabusps growing, out of the
procl^ipation of martial l,aw, are briefly
stated in;.Anv,E, on Courts Martial, London,
1801, p. 13, as follows:—
" In the reign of Mary, a procl:araation
wa.^! issued, that whoever was possessed of
heretical books, and did not pre.iently burn
them,' without reading them or sho'wing

70

APPBNDIX.

them to others, should be deemed a rebel,
and executed immediately by martial law;
and in the succeeding reign of Elizabeth.
it was no less an object of complaint; for
in cases of insurrection and public disorder,
it was uot only exercised on military men,
but on people in general ; and was extended
also to those who brought bulls, (*) &c.
from Rome. We read of a very extraor
dinary exertion of the prerogative in a mat
ter of this sort by ^ueen Elizabeth, who, -
upon some disturbances from the appren
tices of London, constituted the Lord Mayor
Provost Marshal, with power to proceed
against them according to martial law; and
it was a circumstance of nearly a similar
nature, though a more flagrant breach of
the laws, that occa,sioned the enacting of the
Petition of Right, in the third year of the
reign of Charles I. This monarch, inherit
ing his father's notions of Kingly power,
and entertaining a contempt for the com
mons, endeavored to raise money without
their consent ; and among other arbitrary
methods wbicli he took to effect his pur
pose, seui commissioners into the different
counties to, demand acertajn sumfromeach
individual, according to his estate, and. sol-.
diers were ordered to be quartered upon the
houses of those who were backward in their
contributions; and if injured or insulted by
the soldiery, they could not apply to tlif "•.¦
dinary courts of justice, but were obligt <.! i^. '
seek redress from a council of war T\'hich
the king had constituted with power to pro
ceed, within the land, against such si;kliers,
mariners, and other dissolute persons join
ing with them as should commit murder,
felony, robbery, or other outrage or misde
meanor, as was used in armies in time of
war, arid condemn and cause such offenders
to be executed according to njartial law. —
Finding, however, that these rnethods were
ineffectual, he 'was obliged in the end to ask
the assistance of the commons, who on their
part were become resolutely bent on grant
ing no subsidies; till tbe grievances which
the people suffered were redressed, — and
Charles, perceiving that money, which he
could no longer do without, was to be had

on no othei- terms, gave his assent to the
bill prepared by the commons, called the
Petition of Right, one clause of which was,
that the commissions,, for proceeding by
martial law should be dissolved, arid no such
commissions be issued for the future.
TYTJ.ER, in his work on Military Law,
not understanding, or not . sufficiently re
garding the distinction between martial layv
and military law, apparently dissents from
the doctrines of Hale and Blackstone; and
says, (see pages 11 to 27 in London ed. by
James — 1814) "The martial law is a code
or body of regulations for the proper main
tenance of that order and discipline of
which the fundamental principles are, a due
obedience of the several ranks tothe proper
officers, a subordination of each rank tp their
superiors, and that subjection of the whole
to certain rules of disciphne, essential to
their acting with union and energy."—.
This shews that he was speaking of military
laic, and not of martial law. At p. 105 he
speaks of the same system of law as martial
law: but in p. 364 he designates it by its
proper term, military law. In pagM 21
and 22 he apparently recognizes the distinc
tion between the two, for he says, "That
the summary mode of execution, which was
termed the mctrtial law, in former periods
of our history, (when the prerogative of the
crown seemed to have no determined limit)
deserved all those charactei-s of tyranny
which have been assigned to it by Hale and
Coke, we may most, readily acknowledge,"
&c. And in a note to this later edition (p.
23) the decision in the case of Grant ts
Gould, [2 Hen. Blackstone, 69], before
alluded to iu the extracts from McArthur,
\ante p. 59] is referred to as "most 'accurate
ly marking the distinction between martial
law, properly so called, and so described by
these writers," (Hale, Coke and Blackstone)
"and that military law which regulates the
British army." And he quotes in full
nearly two pages of Lord Roslyn's opinion, "
a considei-able and the most important poi*-^ "
tion of which has already been quoted in
the extract from McArthur's work.
; In pages 58 — 62, 'lytier give.* the 6., 1 ..

(*) ; Papal proclamations, or mkndates or edicts issued
bj the Pope, under Heal, and whicli -were formerly issued
for the purpose of influencing tbe action of the Catholic

population of diiferent countries in Europe,— sometimes-
even upon political question s.

APPENDIX.

71

8., 9. and 10. articles of the Petition of
Right, andisays ;— "to this great retrenchment
of the high military powers of the crown,
which, though reasonable and necessary, in
as far as it went to the correction of all ab
usive exertion of the prerogative, must be
deemed excessive, inasmuch as it abolished
' altogether the exercise of the martial law
even in cases of the most extreme andurgent
danger, the king, with much reluctance, was
obliged to consent." Thus he concedes that
¦martial law, as that term is now well un
derstood, was abolished in England, by the
Petition of Right; tbe provisions of which
are certainly not stronger than those of the
Constitutidn of the United States.
A writer in the Law Magazine, [London
May 1851, v. 1. 14; new series, f)age 409,]
.says: -'But tho power of declaring and
exercising martial law cannot, we contend,
be properly described as a prerogative of
the crown : for that power arises wholly out
of an overwhelming necessity impossible to
be met and coped with by other means, and
for cases of such necessity no rules or systems
can provide, nor^ in fact, with such does any
jurisprudence pretend to deal Moreover,
neither Stanford nor Comyns, nor as far as
we aro aware any other writer except Hale
mentions this power or right among the
prerogatives of the crown." * * "Mar
tial law is directly contrary to Magna
Charta, and no prerogative of the king can
be claimed contrary to that statute."
During a former rebeUion in India, the
Advocate General, in an official despatch,
said ; — " The object of martial law, and the
trial of offenders under it, is justiy stated
in the Regulation X, of 1804, to be imme
diate punishment, 'for the safety of the
British pdssessions, and for the security of
the lives and property of the inhabitants
thereof.' It is, in fact, the law of sodal
self defence, superceding under the pressure,
and, therefore, under the justification of an
extreme necessity, the ordinary forms of
' justice. Courts martial, under martial law,
or, rather, during the suspension of law,
are invested with the power of administer

ing that prompt and speedy jiistice, in cases
presumed to be clearly and indisputably of
the highest species of guilt. Tb© object is
self preservation by the tei'ror and the
example^ of speedy justice. But courts
martial which condemn to imprisonment,
and hard labor, belie the necessity under
which alone, the jurisdiction of courts mar
tial can exist in civil society." Hough, on
Military Courts, London, 1834, j9j9. -349,
350. HotTGH, in his Precedents in Military
Law, &c., (London, 1855, pp. 614, 516,)
says; — "The late Duke of Wellington said,
in the House of Lords, 1st 'April, 1851,
regarding the Ceylon Rebellion;— ^' Ihe
noble Earl (*) had referred to his conduct
in respect to martial law. He concluded
that martial Idw was neither more nor less
than the will of the General who commands
the army. In fact, Martial Law meant
NO law at all." Hough quotes further,
from the continuation of the debate, as fol
lows : — " Earl Grey was glad to hear what
the noble Duke said with reference to what
is the true nature of martial law. It is
exactly in accordance with what I myself
wrote to my noble friend at the period of
thosfl transactions, in Ceylon. I am sure
that was not wrong m law, for I had the
advice of Lord Cottenhan, [\) Lord Camp
bell, (J) and the Attorney General, Sir
John Jervis ; (§) and explained- to my noble
friend that what is called martial law is'no
law at all; but merely, for the sake of the
public safety, in cases of great emergency,
setting aside all law, and acting under the
military power; — a proceeding which re
quires to be followed up by an act of indem
nity when the disturbances are at an end."
At page 516, Hough says; — "A learned
member of the House of Coi>imons, 29th
May, 185], said; — 'Mr. Baillie has run a
parallel between martial law and the com
mon -law of England, and he was inclined
to carp at the statement of the Judge Ad
vocate General, that martial law was a
denial of all law. But the Judge Advo
cate was quite correct; it v/as a denial of

(*) " Earl Grey, Secretary of State for the Colonies.
(t) Lord High Chancellor.
(%) Chancellor of the Dncby of Lancaster, and after

wards CJiief .Jijstiee of theQueeo'9 Bench, and Lord
High Charioellor. - - . ¦
(S)' > Afterwards Chief Juattce ef the Common Pler<« .

72

Append IS.

jail law,,sxiA could not be the subject of
regulation. The rule was, when martial,
l^iw was proclaimed, the commanding officer
must use his discretion, and he was expected
to approximate as near as he could to the
regular c^use of Justice," * * * *
c,.",8ir F. Thesiger remarked, that Sir J.
Mackintosh,, (one of the most accomplished
jurists this country ever produced,) said;—
'When law is silenced by the noise of nims,
the rulers of the armed force must punish,
as equitably as they can, those crimes which
threaten thei/r own safety, oind that pf so
ciety, but no longer. Every moment be
yond, is usurpation. As soon as the law
.can. act, .eiiery other mode of ,pumishing
supposed crime, is itself an enormous crime:"
General Halleck in his late work on
International Law and the laws of War,
adopts substantially the views of Attorney
General Cushing, either by direct quotation
or by extracting the substance of Mr. Cush-
ing's statements. General Halleck, it must
be recollected, is treating of Martial Law
generally, and not with particular reference
to the legality or fact of its existence in
this country alone ; and this should be con
tinually borne in mind in considering the
views he has expressed.
He recognizes the distinction between
military law and martial law<, and says : —
"The latter exists only in 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 assist
ance from the civil tribunals, for it over
rides, suspends and replaces both. It is,-
from itsvery nature, an arbitrary power and
extends to all the inhabitants (whetjier
civil or military) of the district where it is
in force."He say.s, too, (p. 372) "What is called
a declaration of martial law, in one's own
country, is the mere announcement of a
fact;' it does not and cannot create thj.t fact.
¦ The exigencies which, in any particular case,
justify the taking of human hfe without the
interposition -of the civil law, may justify the
suspension of the power of such tribunals
and the substitution of martial law."
' &fen«iral Halleck (p. 3T2) further, says,
(quoting verbatim from Mr. Cu.shing's

Opinion,)  "There may , Ufldoubtedly lie,
and, have been, .emergencies, of necessify,
capable of themselves toproduc«, fjndthere-
fore to justify such suspension of all , law,
and involving for the time, the omnipotence
of militarv power. But such a necessity is
not, of the range of mere lega,| que.stions,—
When martial law is proclaimed, under pir-
cumstances of assumed necessity, the procla
mation must be regarded as the statement
of an existing fact, rather than the legal
creation of .that fact. In a beleagured city,
for instance, the state of siege lawfully ,cx-
ists, because the city, is beleagured; and tbe
proclamation of martial law, w such c^ee,
is but notice and authenticaticm of a fact,
^that civil authorit}' has befii supended,
of itself, by the force of circumstances, and
that, by .the same for^je of circumstances,
the ipUitary has had de^¦olved upon it,
without having authoritatively assumed the
supreme control of affairs in the care ofthe
pubhc safety and conservation. "
Again, at pages 273, 274, General Hal
leck, says,"Tbe right to declare, apply and
enforce martial law is one, of the sovereign
powers, -and resides in the governing au
thority of the. State, and it depends upon
thp Constitution of the State whether rc-
.strictions and rules are to be adopted for
its application, or whether it is to be exer
cised according to the contingencies which
.palled it i into existence. ,,|Put evenwjien
left unrestricted by constiutional or statu
tory l?iw, , Hke the power of a civil court to
ppnish contenipts, it must be e.\ercised with
due moderation and justice ; and as para-
mpunt necessity alone can call it into exis
tence, so, must its exercise be limited to mch
times a.ndj)laces as this necessity num. re
quire; and moreover it must be governed
by the rulps of general public, law, as ap
plied to a,, state of war."
Professor Parker, of the Law Schpol of
Cambridge, in his very elaborate and '.some
what extraordinary review of the opinion
of Chief Justice Taney, in the case of Mer
ryman,. says, (pp. 36, 37,): — "The Dukeof
Wellington is quoted as having said that
' martial law is the will of the commander-
in-chief,' and Blackstone says it 'is built
upon no settied principle, but is entirely

APPENBIX.

73

arbitrary in its decisions.' With such a
scope and extent it cannot exist in this
country consistently with the Constitution,
for it would be utterly subversive of the
Constitution for the time being, , Neither
the President n,or Congress can constitu^
tionally proclaim or authorize such a pow
er,, nor can it exist by the general princi
ples, pf law. Burrill in his Dictionary, de
fines it as ^ An arbitrary kind of law or
rule, sometimes established m a place or
district occupied or controlled by an a>med
force, by which the civil authority and the
ordinary administration of the law are
either wholly suspended or subjected to
military power.' This is founded upon the
idea of Blackstone, and is clearly imperfect
as a definition, unless the military power
which exercises this law or rule is not re
sponsible to the civil authority in any
mode for the manner of its exercise; which
in this country is clearly contrafy to the
fact. It has been said that it is 'founded
upon a permanent necessity.' Cf course,
then, it extends as far as the necessity ex
tends, but no further.''
It is true this learned professor supposes
that this disease of the body poMtio may
exist in this country, after being somewhat
changed in its character and its original virus
has been made less active, so as to present the
disease in a milder and less repulsive form ;
but he fails to inform us how this is to be
accomplished. Dr. Jenner, by passing the
original virus of the small pox through one
of the brute creation, was able to produce
the kine-pock virus, and to introduce a dis
ease pf il less, repulsive and less virulent
form, which appeared to work that change
in tbe constitution of mari which, when
occasioned by the original disetwe, prevented
a secpnd attack of the spaall pox ; but the Jen-
nerian experiments of our .political doctors
have shown that the original vir'us of mar
tial law has been made more virulent and
its effects made more repulsivp in the in
stants of Jennerian transmutation which
they have been able to accomplish..^ ^
The foregoing quotations, from the most
reliable authorities, will, it is hoped, afford
the means of determining' the signifi6ation
and force of the term martial law, and aid
(10)

the inquirer after truth in the formation Of
an opinion upon the question^-'whether or
not martial law, properly Understood, can
have existence under the proclathatiOn or
authority of any officer or departrinent of
the government of the United States ?
There is little, if any, reason for question
ing the character of the power which or
dinarily is, and always may be, exeifsised
where martial lata prevails. Tliat power
is absolute, unlimited, despotic. It is bound
by' no laW ; — it is guided ¦ by no fixed prin
ciples. Subject, for ithe time being, to no
legal restraints, it disregards statutes — vio-
latds constitutions — contemns all idea ot
superior authority ;— and, so long as it holds
uninterrupted sway, it paralyzes and defies
the authority and action of all the officers
of civil administration, whether belonging
to the Executive, the Legislative, or the
Judicial department. It places a rope
around the neck of every person within the
range of the exercise of its unlimited and,
unregulated power; — a power upheld by
physical force, made irresistable by arms
and discipline, and accustotned to yield un
questioning obedience to the militarv com
mander. This commander assumes not
only all the powers and functions of all the
officers of every department of GovenimentJ
but all powers reserved to the peopld ; for
his word is the only law', and his will, and
the force of his armed adherents and fol
lowers, the irresistable power by which his
decrees are enforced. His power is limited
only because it must be exercised by physical
force, and cannot, therefore, be extended
beyond the immediate neighborhood of the
forts, camps, and fields in which the anny
reigns supreme; and it knows rio restraints
except such as his humane character, Or the
fear of future responsibility and conse
quences, may impose.
Is not such a power above all lavv and
all constitutions? Does not its exercise
violate, arid, for the time, destroy the Con
stitution? And can any Such power be
delegated, conferred or aWAdrfee^ by any
officer of our government, whose powers are
cdnferred and limited by the Constitrition ? '
It has been said by newspaper Writei's, that '
in a state of war,— that in the midSt^ of a

74--

APPENDIX.

of a i;eb^llion,— the President, is authpri^d
to exercise powers, the exerci.sp of whi,ph is
forbidlen, by the Constitution, — nptwith-
standing ftat such prohi^itipn, is, general,
and makes no distinctipn .between thp con
ditions of rebelli|Pn and war !and .of, peace
and tranquihty. But is not the .Cpnstitu-^
tion ihfended to bind' and coritypl at all
times and in all conditions' of the cduntry ?
Does it not contemplate and make provision,
for peace and war, for, invasion and re
bellion?. 'CJei'tainly it .does;' 'ajOd the idea
thai the Constitution provides for, or ^.u-
thorizes its 'own suspension, or justifies its'
overthrow, pr violation, by any pf , ifs offi
cers, in. peace or in war, would have, been
as'diffipult of comprehension to the great
and'clear mind of that profound constitu
tional lawyer, Daniel' Webster, as was. the
idea, pf peaceable secession of, .one of our
States from the Union and Goyernipeint
formed by that Cpnslituiidn. Thfit he
truly declared to' be ''the ipost absurd oif
all ideas" (Works, vol.] 2, p., 5,91,) and
(vol. 5, p! 361) "an utter impossilility."
CJanj-thpse who a4vocate theidp^rine
that ,.,j;he.. Constitution "suspends ilsejf.in
tirae^of war," refer to, any, expression of
thg, Constitution, which, contains even the
germ of such,.a'is)iici,dal element, or points
to any such instrutnent or occasion ,of self-
destruction ? And cijn those who advocate
such doctrines ai)d . the right of the Pres
ident tp, declare -misjrtM^ law, throughout
all the loyal .^tfttp^; and of other officers
tO;do acts under it plearly, apd expi;essly
forbidden by the Cpnstitutipn, deny that
the languagej pf Mr, Webster, in, reference
to secession and nullification, might with
scarcely the, change of a single word be
applied to the measures 'which they seek to
justify and maintain? Mr. Wpbster says,
(Works vol 3, pp. 459 and 460) : " The
Constitution dqes not .provide for events
which must be preceded by its own destruc
tion. Secession, therefore, since it roust
bring these consequences, with it, is revo
lutionary ; and NULLIFICATION is equally
REyoLUTioNART. What k rcvolution ?
Why, sii;, that is resolution which overturn^
or controls, or successfully resists, the exist-
ing pubUq g,uthority; th,a( u/hich arrests

the,, exercise of the Suprem^e Power; that'.
which introduces anew paramount authan...-
ity into the rule ofthe State." -"
' Again (p. 461): "Nullification if suc-
cesslul arrests the power of the law, ab
solves citizens frOm their duty, s'bverts the
foundation both of protection and obedi
ence,- dispenses with Oaths and obligations
of allegiance,(*) and elevates another au
thority to supreme command; Is not this
revolution ? And it raises to supreme com
mand four-and-twenty distinct powers; each
professing to be under a general govern
ment, and yet each setting its laws at defi- '
ance at pleasure. Is not this anarchy, as
well as revolution ? Sir, the Constitution
of the United States was received as a
whole, and for the whole country. If it
cannot stand all together, it cannot stand
in parts; and if laws cannot be executed
everywhere, they cannot be long executed
anywhere." • Again, [p. 490,] "Nullification, sir, is as
distinctly revolutionarv' as secession ; but' I
cannot say that the revolution which it seeks
is one of so respectable a character. Seces-
;sion would, it is true, abandon the Consti
tution altogether,, but then it would profess
to abandon it. Whatever other inconsisten
cies it might run into, one, at least, it would '¦
avoid; It would not belong to a govern
ment, while it rejected its authority. It
would not aid in passing laws which others
are to obey, and yet rtject their authority
as to itself It would not undertake 'to
reconcile obedience to public authority with
an asserted right of command over that
same authority. It would not be in the '
government and above the government at
the same time."
Bnt, it will be a.sked, may not the exist
ence of a paramount and pressing necessity,
and the just rights of present .self-deferice,
justify or excuse extreme measures on the
part of the actual commander of an army?
Can any party be punished, or be held
responsible, civilly or criminally, for an act' !
forced upon him against his w'ill, and coni- '

(¦*) As it is assumed -war and martial law disnensei
with oaths to Buppoft tho Constitution and execute tbe

APPENDIX.

75

peLed and- justified by an overruling, over
whelming, inevitable necessity ? May not
a General, or any popular leader, who can
find adherents and followers, and who has
no unlawful designs and no unworthy mo
tives, exercise influence or control over those
followers,. and prompt or direct i hem to use
all necessary means of self-defence, against
pressing and imminent dangere, against
which the laws can afford them no protec
tion? Are ndt armies, — and Other organ
ized bodies, — as well as individuals, to enjoy
the right of self-defence ? It seems to be
just and reasonable that they should, but
their rights of self-defence must be deter
mined and restrained by the same principles
and the same civil tribunals which deter
mine the limits of the right of individual
self-defence. Courts and juries in the ordi
nary judicial tribunals,^ — not the leaders of
the army or pther force, — must determine
whether any act complained of was justi
fied l)y the necesaty of the case. If We
concede this right of self-defence, and
allow those who assume to exercise this
' right to determine for themselves, when, and
under what circumstances its exercise shall
be justified, and the manner of its exercise,
the insurgent leaders and insurgent states,
will have no difficulty in deciding that the
rebellion which has perilled the existence of
' the Constitution and the Union, was required
and may be justified by this right of self-
defence, — while courts and jurors ' would
necessarily reach a different conclusion.
Does not this show that this right of social
or military self-defence, when exercised un
der the pressure or the pretence of neces
sity, by individuals or organized bodies, —
armed or unarmed, — must be judged of,
and its limits be determined in the ordinary
way, by courts and Juries, in the course df
judicial investigation, and upon the well set
tled prinoiplfes of the common law? And,
in case any party shall be injured, and seeks
legal redress; or in case acts, which, under
ordinary circumstances, amount to a crime,
have been committed, and a criminal pros-
'ecution instituted, is not the party who has
committed such acts, to be visited 'with then-
legal consequences, if a court and 'jury
determine such acts to have been unneces

sary, and, the'refore; ufijustifiable? IndSed,
under all the authorities, are not the acts of
a military commanddr, — ^eiven when mar
tial law tOay be proclaimed without a viola
tion ofthe Constitution, — subj'eet to investi-
gatiori, befdrethe ordinary courts of justice:
and is not such commander subject to claims
for private damages, or to criminal punish
ment, if not fully justified by the apparent
necessities Of the case ? During the ^preva
lence of martial law, courts knd juries may
be submissive and silent ; but, as soon as the
exigent necessity has passed, their functions
must be resumed ;' — and the military com
mander, who has, without the justification
of inevitable and inexorable necessity; put
a rope around the neck of all or any bf his
fellow citizens, may find that at the same
time he' placed his own neck in similarperil.
And, if he has adopted any measures which,
in the opinion of a jury, were not dictated
and justified bv the necessities of self-de
fence, or the magnitude of the .'perils which
endangered his own and the public safety,
he must submit to the legal consequences,
and answer, civilly and criminally, for all
such acts which courts and jurors may de
cide were not justified by the present neces
sity of the particular case.
Mus(; riot tbe character and extent' of the
necessity which justifies the exercise' of ex-
tradrdinary powers determine the charac
ter and extent of the measures adopted to
meet the emergency;' and if hfe be - taken
from wantonnefes, or malice, or without ap
parent necessity, is not the party, guilty of
the homicide, a murderer? And if the
peaceful and unoffending citizen be 'injured,
in person or prdperty, without such apparent
necessity, aie not the' judicial tribunals of
the country to afford him the proper re-
d ress ? (See ' C om . vs. Blodget,' 1 2 Metcalf
50; Mitchell vs. Harmony, 15" Howard's,
Rep., 115.) «s' 'i '
' Must not the necessity which justifies such
acts, be then and there, present and pressing,
as well as inevitable and irresistible? Is
it not then, at the very least, exceedingly
doubtful whether any such thing 'as an au
thoritative and' valid declaration of rnmtial
law, (distant from, or even at the' scene of
thd perils and necessity which, in a foreign

¦m

Appendix.

country, will alone justify it,) can be,made,
in the United States, under its present Con-,
stitution? And can there be any legal or
justifiable; .exercise of the powers usually
exercised where martiql law prevails, except
from the absolute and inevitable necessity
of their exercise for the purposes of social
or military self-defence ? And must not
that necessity be such as to force the adpp-
tion of such measures; — a necessity which,
could not have been avoided, and is irre
sistible; which leaves no choice of measures,,
and admits of no delay .^ In this view,
can any previous proclamation of the
President confpr any power, or change, in
any degree, the legal aspects of , the case ?
Would not any measures which, under the
circumstances, are justifiable after such proc
lamation, be quite as justifiable if no pre
vious proclamation had been made ? In
other word.s, are not Cnshing,;,Hallepk, and
the other writers quoted, entirely correct in
stating (to use the language of General
Halleck) that "what is called a declaration
of martial law in one's own country, is the,
niere announcement of a fact; it does not
and can/not create that fact." Js, not the
justification of the exercise of arbitratry
power in this country to rest wholly on
the/^w of social arid military self-defence
to, be administered in the ordinary courts
of juvstice ; and does not such law depend
spbstantially upon the same principles which
justify an individual in inflicting an injury
upon ,apother, or even in taking life in self-
defence? And aip not these rights of self-
!, defence, individual, social and military,
.based upon and limited by the necessities
of the; moment, substantially in the same
manner, in all those cases ? And are they
pot in, all those cases to be finally judged
,of by courts and juries in the ordinary civil
f.Ttrihunals? , J
Is it, then, safe or propeli for our people
or their ^'epresentatives to look approvingly,
,, or even without, earnest but respectful re
monstrance, upon the partial declaration of
¦martial law already made, and under which
_> so many and such gross abuses have al-
; -aseady been detected and exposed ? Is it not
. (Certain that but a very small proportion of
.Mhose abuses ix&ve, , yet been exposed ; and
that (uch abuses will rapidly Increase in

numhej;,and enormity, so long as they are
unrebuked ? And shall the exerpisp of this
power, in a mpdified and mild form, be ap
proved until the acts committed undpr it
shall constitute a mass of precedents under
the shadow of which this little offspring of
usurpation shall grow into the fearful pro
portions and attain the terrible vigor of
martial law, as it prevailed in the reigns of
Mary and Elizabeth, of Charles, and, James
I. "and II.? Is it wise or prudent for those
in authority to sanction, by repeated prece
dents, the exercise of unconstitutional power
upon tbe ground that necessity overrides
the judicary, the law, and the Constitutipn?
A leading New York newspaper (*) \y|hich
professes to support thp Administration has
very distinctiy intimated to the President
that the people, di.ssatisfied with the action of
the administration, might, from necessity,
depose him, and, (disregarding the forms
of the Constitutipn) appoint another lead
er; — and so late as Octpber 24. 1862, the
same paper puMished a letter from, its
" correspondent" at New Orleans, in which
it is said-r-" The time indeed is not far dis
tant when the people, in their ma,iesty, will
rise and d«mand that the resolutions of the
French j* ssembly shall be adopted as the
basis of our future action. Then will ring
through the land :
1. — That it is a crime to despair of the
Republic. 2. — That every man capable of bearing
a!rms, is at the disposal of the Republic,
3. — That every horse, mule, ox, cart, or
all else servieeable in war, are at the dis
posal of the- Republic.
4. — That the men at the recruiting sta
tions everywhere, shall hasten to the bor
ders, armed with such weapons, as, are at
their command.
5, — That every General of Division shall
be responsible with his head for a defeat.
6. — That to punish the guilty, the guillo
tine on trucks shall accompany every divis
ion of the army.
7. — That a commission of the people
shall accompany each division of the ai'my,
who shall see that these decrees of the peo
ple are sternly carried out."

(*) The New Torfc Mmw.

APPEKDIX.

,'77

And in the Sunday paper from the same
office, October ,20, 1862, the letter of its
'¦^correspondent" at London, contains the
fpllow.ing pregnant sentences :
"Englishmen are in great trouble at the
illegality and unconstitutionality of the acts
of President Lincoln. They have a great
tenderness for the Constitution and the laws,
and feel very badly that the Northern peo
ple, while conquering the South, should
lose their own liberties. They tell us that
the President cannot do this arid that —
that his proclamations are only waste paper.
They appear to have very little idea of
what the ('omraander-in-Chief of the army
and navy of the United States can do. A
man of firm and resolute will, "with a mill
ion of men in arms to support him, can do
pretty much what he pleases. They have
to learn that -paper constitutions, however
convenient they may be, cah be amended
when necessary, suspended, or laid aside
altogether, and that it is no longer a ques
tion in America what this or that constitu
tion authorizes, but what is necessary to be
done to make of thirty-four States and a
vast territory, one nation."
What are we coming to when such prop
ositions are made and pass unrebuked ?
Are the people (and who are the people
that are to do it,} to depose the President,
take command, of the arn-y, and re-enact
the scenes of the French Revolution with
all the improvements in atrocity and the
means of destruction that the experience of
seiventy years may have introduced or sug
gested? The people certainly cannot com-,
mand the army until the Constitution is over
thrown ; and if the constitutional command
er-in-chief of an army of a million of men can
suspend or lay aside the Constitution, the
General who commands that army in the
field — "a man of firm and resolute will"-^can,
, if the army will follow and obey him— and,
t they are quite as hkely to be wilhng to do
that, as to follow and obey a civilian Presi
dent who proposes to ovei;throw the Consti
tution — may suspend not only the Consti-,
tution, hut the President and his Cabinet.
Is it then wise or prudent, for rulers ' or
.f;pepple to assume, that any necessjty may
authoEize the Jfresident or any other civil

or military, ptficer tp override, the ponsti-
tuted aiithorities, to suspend all law, and to
overthrow the Constitution ? ^ Is it wise or
prudent to make a precedent for some able
and apibitious militai-y leadei; to assume
the reins of government oh the plea of
necessity ? Certainly npt. It is moon
struck madness. There is no safety except
in obedience to the Constitution and the
lawful authority of all holding pffiice under
it. Is it not clear that the President's
authdrity may be resisted on this ground of
necessity, as well as the authority of the
Judicial iDepartment,— the authority of the
law ? And if any ambitious and unscru
pulous military chieftain shall ' ever assume
the powers of government and maintain
his infamous usurpations, will it ndt be
under this same plea of necessity ? If this
assumption tliat necessity can suspend the
Constitution, and authorize the exercise of
powers which have not been granted,, and
which have in fact been denied, is sanction
ed, will it not be insisted, and plausibly if
not reasonably argued that, as a necessary
result, the same kind of necessity, differing
only in degree, will aijthprize a General in
the actual command pf an arnay to over
turn the then existing administration of the
government as well as the Constitution of
the, co)intry? If some unscrupulous but
popular General should pitch the President,
the Senate,, the Supreme Court, .the -Heads
of Departments and the House of Repre
sentatives into the Potomac,; it would be
easy fpr hitp,— if he had 200,000 bayonets
to maintain his position^to, say .tl^ese acts
were required and justified by ,inexorable
necessity? Suppose he should s,ayljj^,the
necessity was, of the highest and most ox-
trenae character, — that it was absolute, un
avoidable, inevitable, — rthat it was palpable,
present and , pressing, as well as inevitable,
inexoiAblg, irresistible and overwhelnsiing ; —
that it admitted of no ,choicp of measures
and no inaptivity or delay, and that such
necessity imperilled alike his own and his
army's present safety and the ultipi.atp , safe
ty of our free institutions, our Cppstitution
and pur pouptry? /^^hat answer, (Jfjuld
those -who ,baye imade a necessity not |dis-
cer^i-ble.by ordinary men the justification

^78

aPpeStdix.

of smaller but still most dangerous breaches
of the law and the Constitution, logioalTy
make to this assertion ? But would riot courts'
and jurors who had sanctioned nd such
dangerous' heresies he likely to say that any
, commander, who, on any pretence df neces
sity, should resort to such extreme measures
was a rebel, a wholesale murderer^ and a
traitor ? Arid would lidt the memory pf the
perpetrator of such an outrage descend to all
future generations blackened and blasted by
the universal execration of all gOod citizens;
unless the impartial historian was compelled
to record the fact t tiat all these functiori-
aries had established the precedents which
led to ^rid justified the outrage, and had
by tyranny and oppression and a deliberate
conspiracy to overthrow the Constitution
df the country and deprive the people of
the inalienable ri'j-hts of life, liberty and the,
pursuits of happiness which that Coristitu
tion had guaranteed them, deserved their
fate? Ought riot, theri, all 'men, every
where, whether holding official position or
not, to beware how they sanction, upori the
dangerous plea of necessity, the exercise of
powers not conferred by law or the Consti
tution, but denied by both ?
But it irsty be said, — Is the necessity of
the time arid place to be disregarded ? arid
are parties to be punished for acts of neces
sity which it was beyond their pOwer to
omit or prevent'?' Certainly- not. But is
not the necessity to be judged of by the
comrriou law, and to be u^ed simply as a
shield of defencej and not as a weapon for
assault ? And must it not be a cOmmon
law defence, and riot a military one? In
short, under our Constitution, can the Pre-''
sident or any military commander suspend
the law so that the validity of all acts shall
not be determined by the laws as adhiinister-
ed by our judicial, tribunals? And can
Congress, as the national legislature, amend
or suspend the Constitution, or any part of
the Constitution, under which alone they
have authdrity to sit and act as legislators?
In their official arid legislative character ihey
are the offspring of the Constitution ; and
can they constitutionally arid without a' viola
tion of their official oaths be guilty of the
'{iarricidal act of destroying that Constitu
tion.

It is 'said that the President, as com
mander-in-chief or under' the' "WTar Pow
er," Tiiay declare martial law, makd arbi
trary .arrests, imprison in remote and secret
prisoiis, and for indefinite periods- of time;
arid' that while as President he is bourid by
tbe Constitution, he is riot bound by it as
commander-in-chief, and' that " Constitu
tionality and , unconstitutiondlity cannot,
therefore, be predicated of ihe acts of. the
commander-in-chief" (Dowry's pamphlet,
p. 11.) But where is the authority for i
saying that a rebellion in any section' of the J
counti-y or the fact of the existence of a
foreign war renders the President, 'as com
mander-in-chief, a military despot ? ' If he
can disregard the Constitution and the law
and arbitrai'ily imprison, without trial, or
even a preliminary complaint on oath, may
he not ta^e the life of any citizen ofHhis
State under the same authority? If he is
not restrained by the Constitution, but is
vested with despotic authority in the' one
case, is he not vested with it in the other!
Did riot ^he framers of the Coristitution,
iriost of whoin had participated in the long
and severe struggle, with the armies of
Great Britain, which established' cmr inde
pendence, know that future wars and future
rebellions were to \>e anticipated, and did
they not in the Constitution make provis
ion -for both 1 -And would they not 'have
bfeeri fit subjects for an asylum for idiots, or
for a lunatic asylum if they had made pro
vision for restraining and limiting the pow
er of the' President as a civil magistrate, or
as commander of the army in time of
peace, and yet had given him despotic and
unlimited power in time of war? Did
they npt know that' it was in time of war
and While be was exercising the power of
military command, that there was the most
necessity for a limitation of the poWfer of
the Chief Executive Officer, whethfflt'aCtingl
in his military or civil' capacity? All the!
teachings of history and all the experience
of the past, must have taught the mewbers
ofthe Convention that framed- the"' Con- 1
stitution that' it was whilst' ambitious;
leaders and embryo tyi-ants held high!
riailitary Commands, and iri the'iriidsjt of war
or iiisurrection, that their desigtts against

APPENDIX.

79

the liberties of the people are most to be;
apprehended. Do not the provisions of
the Constitution which vest in Congress the
power to declare war, (a power which in
England and most other European coun
tries is vested in -the King, alone,) to raise
and support, armies, to make rules for the
government and regulation of the land and
nav^i ,|drcep, to provide for caUing forth the
militia to execute the laws of the Union,
suppress insurrections and repel invasions,
to provide for organizing the militia and for
governing such parts of them as may be
employed in the service of the United
States, and those which provide that no apT
propriation of money s for the raising and aup'
port of an army shall be for a longer term
of two years, and that the right of appoint.-
ing.the pfficijrs pf the militia .shall be re
served to the ; States, shpw that they had
no idea whatever of givingthecompiander-
in-phief, , under any circumstances, the desi
.potic powers which political pamphleters
and partizan editors now ascribe to him ?
Thp, President in, his. civil capacity, and as
commander-in-chief, is but the creature of
the Constitution, and in neither capacity
has he any powers except such as are con-
ferre4, on him by that instrument, or by
laws passed under its authority.
But it is said the Constitution has nau-
thorized the suspension of the writ of habeas
corpus, which is one of the principal inci
dents and effects of martial law, and that,
as ope of the incidents of it is authorized,
the;authority,:to declare martial law, as the
principal, may be inferred. .This certainly
is npt the sound conclusion. The author
ization of the principal necessarily includes
all the inevitaljle Incidents; but it would he
astrange doctrine that an authority from the

Pnesideng: to the Secretary of War to do one
executive act would justify him in exercising
all the powers of the Executive. ¦ Precisely.
the opposite is thp legal rule. " Expressio
wnius, est. exclusio alterius;" — the express
mention of one, is the exclusion of the other;
is the .sound maxim of legal construction in
such Cases. Acessorium non ducit sed se-
quitursuum principdle; — the incident shall
pass by a grant cf the -principal, but hot
tjhe principal by the grant of, the incident,.
(Coke V Littleton 152, a: 6,, Bingham 63.)
The suspension of the habeas corpus in
certain cases is allowed ; but the very strong
provisions of the amendments to the Con-
stitution,^copied in the preceding pages,
and- which therefore need not be repeated
here, — abundantiy show that the arbitrary
and, despotic powers assumed and exercised
where martial law prevails were most studio
ously, expressly, and distinctly denied to
every officer, and department of our gov- ,
ernraeut. And even the suspension of tbe
privilege of the writ of habeas corpus re
quires the action of Congress, as theauthor-
• ities cited in the foregoing opinion and notes
abundantly show.
It is hoped the foregoing authorities,
thus, hastily groujjed together without oth
er order than that in which they happened
to be found, and the very hasty and crude
suggestions, which their perusal has occa
sioned, may lead others, who have the
requisite leisure, to a more careful and
thorough examination of the authorities
and a more systematic and complete discus
sion of the grave questions tc ivhich , refer
ence has been made. If this shall be ac-
coiiiplished the writer of this note wil. have
attained' the principal object which he bad
in view in its preparation.

80-',

APPENDIX.

ITOTE S.

Raw-lb, in his work- on the Constitution
of the United States, (2d Ed., Phila., 1829,
p. 118.) speaking of the- writ of habeas cor
pus, say a: "This writ is believed to be
known only in countries governed by the
common law, as it is ' established in Eng
land ; '(*) but in that country the benefit of
it may at any time be withhold by the au
thority of Parliament, whereas we see that
in this country it cannot- be suspended,
even in casSes of rebellion or invasion, unless
the public safety shall require it. Of this
necessity the Constitution probably intends
that the legislature of the United States
shall be the judges. Charged as they are
with, the preservation of the United States
from bulb these evils, and Superceding the
powers of' the several States in the prosecu
tion ofthe measures they may find it ex
pedient to adopt, it seems not unreasonable
that its control over the Writ of habeas cor
pus, which ought only to be exercised on
extraordinnry occasions, should rest <vith
them. It id at any rate certain, that Con
gress, which has authorized the courts and
judges (if ihe United States to issue writs
of habeas' corpus in cases within their
jurisdiction, can alone suspend their power,
and that no State can prevent those courts
and judges from exercising their reyiil,-:i
functions, -^which are, however, confined to
cases of imprisonment professed to be under
the authority of - the United States, But
the State courts and judges possess the right
of determining on the legality of imprison
ment under either authority." '

JudgeBoavier (Institutesj p. gi.sec. 211)
ys: "The habeas corpus can be sus
pended only by authority of the Legisla
ture. The Constitution provides that 'the
privilege ofthe writ of habeas corpus shall
not be suspended, unless when in case of
rebellion or invasion the public safety may
require it.' Whether this writ ought to be
suspended depends on political considera
tions, of which the Legislature is to decide.
The proclamation of a inilitary chief, de
claring martial law, cannot, therefore, sus
pend tbe Operation of the writ."
Judge Walker (Introduction to American
Law, Ed. 1837, p. 195, 3. 193,) says:—
"Our State Constitution declares that 'no
power of suspending laws shall be exercised
except' by the Legislature.' Perhaps it may
be asked what other power than the Legis
lature Could suspend laws ? None, certainly,
without usurpation. The power to siis-
pend a law is the same as the power to
make it; for one law can only be suspended
by making another to suspend it. Hence
the exception in favor of the Legislature. — '
The provision, therefore, must have contem
plated a very remote possibility of usurpa
tion by the executive, judicial, ' or military
departments. We have seen that ther^ is
one law securing the privilege of the writ of
habeas corpus, whieb cannot be suspended,
even by the Legislature unless in the ex
treme emergencies of rebellion or invasion."
Judge Tucker, (Tucker's Blackstone, vol.
1, Appendix, p. 292) says: "In England
the benefit of this important writ can orily

('*') The iaterdlct de hom/ine libera ,eaihdbendo, of the
Roman la'w was a remedy similar to the writ of habeas
corpus. When a freeman was restrained by another,
contrary to good faith, the praetor ordered his interdict
that sueh person should be brought before him that he
might be liberated. Dig. 48, 29, 1.
The following is Judge Bouvier's note on this sub
ject, in which be gives (in the original Latin and in
English) the substance of the provisions of the Boman,
or CrviL La-w-; (note A, Bouvler's Institutes, Vol. 1„ p.
91.) "Th© words of the Digest which grant a writ sim-
lar to the Habeas Corpus are: ^Ait praeter quem Ub-
erwndolo tnalo reUnens, exh^beas. Dig. 148, 29,, 1. —
The edict of the praeter is thus conceived: 'I order
you to bring before me the free person whom, in bad
faith, you detain.' This mandate requiring the pro
duction of any person who was unlawfully held in con
finement, might be sued out by any one, it being open
to every person in favor of liberty. ^Ait praeter, ex-
Jiibcas,' continues tbe Dig. 43, W., 8 and 9; 'exhibere

est, in publicum producere, et videndi tangendiqoe
hominis facultatum praebere. Prqprie autem exhibere
est, extra secretam habere. Hoc interdictum omnibus
competit; nemo enim prohibendas est llbertati favore.'
The edict of the praeter says, that you exhibit. To
exhibit a person is to produce him in public, and put
it in the power of others to see him and to touch him. —
To exhibit, is, properly, not to have in secret. This
interdict is open to every one, because every one
is entitled to it in favor of liberly." And see Hurd on
JIdbeas Oorpms, pp. 145, 146.
"And the process of the Spanish law, called 'Manifest
ation,' appears to have resembled the -nrit of Itaheas
corpus. Mr. Hallam cites a remarkable instance of its
use and efficiency against the sovereign, not only in
order to illustrate the privilege of 'Manifestation,' but
as exhibiting an instance of judicial firmness and in
tegrity, to wnioh, in the fourteenth century, no country
in Europe could offer a parallel." Hallam's Middle
Ages, 222.. Hubd on Habeas Corpus, p. 146,

APPENDIX.

81

be suspended by authority of Pariiament. —
It has beeri done several times of late years
(this was published in 1803) both in Eng
land and Ireland, to the great oppression of
the subject, as hath been said. In the
United States it can be suspended, only,
by the authority of Congress; but not
whenever Congress may think proper; for
i't cannot be suspended, unless in cases of
rebellion or invasion. A suspension urider
any other circniBStances, whatever might be
the pretext, would be unconstitutional, and
consequentiy must be disregarded by those
whose duty it is to grant the writ. The
Legislatures of the respective States are
left, I presume, to judge ofthe causes which
^ may induce a suspension within any par
ticular State. This is the case at least in
Virginia." ' Df. Lieber, in his work on Civil Liberty
and Self Government,- [vol. 1, ISOjsays:^ — '
"It is obvious that whatever vrise provisions
a constitution may contain, nothing has
gained it the 'power of declaring martial
law to be left in the hands of the Executive;
for dedlaring rnartial law, or proclaiming
a place in a state of seige, simply means
the suspension of the due course of law, of
the;tight of habeas corpus, of the common
'law, and of the action ofthe c&wfts" \
Attorney General . Cushing [Attorney
General's -Opinions, vol-. 8, p. 365 and 379.
See, further extracts from i opinion , past,
NOTE H.,] says: "And the, opinion is ex
pressed by the commentators on the Con
stitution that the right to suspend the writ
ofjiahegs corpus, and also that of judging
i^hen, the exigency has arisen, ; belongs ex
clusively to Congress."
, Mr. Justice Woodbury, in his opinion in
ji^Uther v,s. .Bpi^den, [,V Howard Rep. U. S.
Supreme Court, p. 87.] says: "The v)rit
of habeas .corpus, also,, unless specially
fjsus.pe'nded iy ike Legislature having power
to do. so, is as much in force in intestine
war as in peace, and the empire of the
laws is equally to be, upheld, if practicable.
iPr. Hart, in his work on Courts Martial
[see pp. 17 and 18], also supports thedoc-
.t^ne contenHed for, and says, "the Consti-
tution guarantees the privilege pfthe .writ of
habeas corpus, which it declares "shall not

be suspended, uriless- when in cases of re
bellion or invasion the 'public safety riaay
requite it," and the intervetitidn of Cotl-
gr'ess is nechssary before such suspension
can be made." [See past note h., on
Martial Law.]'
'Sedgwick, in his Coiijmeritaries bn Statri*
ary and Constitutional Law, [NeW York,
1857] says: [p. 598] "The writ of habeas
corpus ad subjicciendum, was first secured
to English liberty by the fairious statute
31. Car. IL C. 2 ; but in England, like all
the other guarantees of private right, i't is
subject to the pleaStire of parliaoient. —
Here, we have fixed it in the Constitution,
and declared that it can only be forfeited
during periods bf warfare or rebellion.—
Practically as yet. Congress has never au-^
thorized the suspension of the writ. It is
understood that as the unlimited power is
¦bested in C'ongtess, the right to judge of
the eUpediericy of its exercise is als» abso
lute in that body. "
Judge Conkling, in his' work on the Juris
diction and Practice of the United States
Courts, r3d Edition, Albany, IS56, p. 73,]
says '; — "The nature and extent of the power
of the courts and judges of the United
States, to protect the i'ight of personal lib
erty by means of the great writ of habeas
corpus, ad subjieiendumi have been the sub'
ject of most earnest ditajussion. The framers
pf the Constitution, assuriaiiig that the
poWCr Vould belong to the National Judi
ciary, Contented themselves with ordaining
that 'The privilege of the writ of habeas
corpus shall nOt be Suspended, unless in
cases of rebellion or invasion, the public
safety inay require! it.' This power, there
fore, in common with all other judicial
powers, with the qualified exeeptiori of the
original jurisdiction of the Supreme COurt,
was left at the disposed of Congress.
Judge Smith, (of Indiana,) in his Ele
ments of Laws, [Phila., 1863.] p. 38, refers
to the constiiutional restrictiori in respect tO
the suSperisiOn of the habeas corpus as a
restraint upon the legislative authority of
Congress. ' ¦ '
The Convention of the State of 'New
York, which, in 1788, gave the assent of
the people of the State to the Constitution

(11)

82

APi^^ajpix.

of (the Unitedi States, and. thus.jjm^^e, the
State oaei.of - thc^tatep.of .thei Union,, ii^
the act or instrument by which the people
ftf this State, ^hr^ouglf sucji Cpnyentipi),
becanie parties to the jponstitution <,^f t^ie
United States, did "declare .3n;d;,naake
known,'?,, (among :,ptherj tilings,) '!that iall
power is originally Vested in, an4 ,cpnser
quently sderived , from the people, and 4ih,a,t
government is instituted by them, fjojr, their,
conimon in.terest, protection and spciirity-"-^
*i-. ,ii* i,\.:\*.'. ..'f'llhi^t eveij)ppwef, juris-
d(i(^pn'and right, whichiis.not, by the sai4
constitution cleariy 4el.egated to, the Con
gress .of, the. United , ,S|tia,t,e,8, or .thp , depart-'
ments.of the government therepf, .remains to
the people .of .the ,several-) States pr tp, their
respectiye State, govei;nments, to, whpra
they may, haVjp. granted thp samp;, a^d.that
those elduses.inthe said. Cf>n^titut^n< which
declare. .that .Qongress shgU,..not have, or
exercise , certains powers, do noi imply that
Congress is entitled to any powers .i(iot
given by thfijjflid,. Constitution; but such
clauses are:,{Oibe con,struied,,as exQeptioiis to
ceTtfdn specified powers, or as .inserte4\
merely for greater , caution;"— r ., * * .*
'I'TlIAT KVEBY.PERgON, BBSTRjVIlJEp pjj HIS
LIBERTY, IS ENTITLBP .TO AN ISQDIBY IKTO
THB> ;I*AWi'CrLIJBqS OF SUpH .RESTRAINT, ftud
tp;a removal thereof, if uj?lawfui.J aiid
THAT SUCH' INQUIRY and rcmoval ought not
TO BE. BBLAYEn, j;X,CBl?j;-VyHj:N,ON ACCOUNT
OF ppBi.ip,,i>ANGBij,/THE CONGRESS
SHALL, SUSPEND, THE PRIVILEGE
OF.^TH^ WRIT OF, H.ABE 43, COR
PUS." ,,,Ancl, after these, ^ijd other declar
ations, ,the instr,timen,t, proceeds, \\Under
these, impressions., ancl^ de flaring ^bfit, t^b
RIGHTS AFORESAID, oq.ft^ot, be abridged, pr
violated; and J,^qt.th.e^ explanations. afore
said.' 4.hs CONSISTENT, -wiTh the, Qo.NSTlXU-
tion;"^ ..* -'-* t.,' "We the .said 4'^!^-:
gates.in the na.roe,and,,in the, ,behail.f qf the
people of thp. State of -New York, do, by
these presents,, o.s«w<, to and, ratify t)ie
said. C'pn^tii"ti,on.",- Journal of the Federal
Conyen.tioii, Wait's Edition, Bp^ton, ,1819,
(Supplement,) pp. 426, 427, 428,. 4^1,,,, ,,
And among the amendments which this
Contention recommended was the follow-

in8*/UM4. p. ,434];—" ^a( %e< privilege
of th^ BABBAS .qoRPUs shall not, ¦^x^^kvi^^
i.k-w,bfi suspended for a longer term, thtm
s,ix months, or .until twenty days after tfig
meeting of tJie.. Congress riext following
the passing' or the AQ'^^ ^°? sugh.sus-
p^A'sipN." , ^ ¦ ,'. I,
.These eyti^cts, show that this- Convene
tion,{presided,overby Gov. George Clinton,
and composed of the ablest, men. of the
State, among whom were Alexander
Hamiltos, ito BERT Yates, and John LAjfr
SING, Jun. who had, beep,; members of the
Convention vphich: framed the CoostitHtJon
of the United, States, and John Jay,). enter
tained and' acted upon the ppinion that
Congress only comIA. suspend the privilgge
of the habeas, corpus .-under the CoBptitlii-
tion; and that it would be wise to restrict,
still further, the authority of. Congress to
suspend; a privilege sp essential to the main
tenance of personal liberty. See, also, the
acts of ratification by ,the other States,.
[Ibid,, pp. 3-91 — 450.] Sea the instruments
-of ratification, — ^Journals of Congress, friom
1774 to 1778, vol 4., pp- 46 and 6h ,
It is proper here to acknowledge that the
writer is ifldebted for this reference to the
proceedings of the New York Convention,
to the letter of a venerable and learned
lawyer and statesman, — now retired from
public life, — who was, twenty years since,
one of the ablest and most respected of the
then judges of the highest Court of the
Stale. -¦•-.; -.-. ,
And Inger.soll, in his History^ and Law
of the Writ of Habea's Corpus, salys ;^-i-" It
has riijver been feuspetidfed in th^ United
States. In Januarys 1807, a bill passed
the Senate for its suspension; but' was
rejected in the House, of Representative
by a large majority,"
The writ of habeas corpus apptearsHo
have been Orice p'ractitally siispended in
thfe Colony of New York, as appears tiy
'•' A ' Modkst and Impartial JVa^fal^e,"
d'C, of the extravagant and arbitrary' p¥o-
ceedings of Jacob Leysler,'and his acconi-
plices." [Documents, relating to the Ctoi.-
ONiAL History of N. Y., vol. 3, pp. 665,
671 to 684.] ' .. . , ,' : ,.(

ApptobiiJ"

m

,Fron^ this narrative it 'appears tliat "thii'
proud ..u,surper," (Leysler,) 'finding, the'
sweptness of an arbitrary power agreeable
ijvith arbitrary miri4," deemed "it a fault in
aHy who objected the law against his illegal
proceadings. Upon all such occasions he
would angrily answer; — ' What! do you
talk of liiwP The sword must now' rule."
And he sent, by his order in council, bis
prisoner tp Eort William; and refused
obedience to the, writ of habeas odrpus.
The whole narrative is curious and int^r;
esting, and shows that old practices, as.wejl
as old modes may, after the lapse of pne
hundred and seventy years, come agai'ii in
fashion. ,
' The British '• General Gage, asssuraed
{during the American Revolution,) to sus-
'pend the writ of habeas 'corpus at Boston,
by declaring martial law;— ^announcing, as
the ground and justification of the act,
"that^ as a stop- was put to the due course
of jiistice, martial law should take! place,

till the laWs '-vvere restored to' tlteir due effi
cacy."' ' [Annual RiSgisterfor 1775, p. 133
—7. Howard's U. S. Rep.' 6'5. *' ' '
,;It .is' beh'eyp.d, that the privilege pf the
writ, of habeas corpus .was ne'Pir suspended
by the Aniei-ipan Congress, or by Gerier'^I
Washington, 'as a Military Commander,
4uring the whole period of bur revolution;
^though the. Am.erican govCVp'ttierit and
conamander were then engaged in a 'mostj
desperate, struggle against great riiimbers of
open and secret enemies at home, and the
well .discipyned arid powerful British armies
sept against them frorii abroad.
It .pannot be necessary tp, suspend it ip
reference ; to alien , pnennies, or, prisoners of
war;,'fqv it, is well settled in Englan4',i;9ifl4
would be held here, ,that the writpf hql)e,a^
corpus cannot bp, obtained by .fiu; a^ien
enemy, or prisoner of war. [2 Hen. Black
stone, 1324; 2i Burrow, 765.]-. The relief,
if any; in such cases; is by application to
the Secretary >of War. .¦¦ .¦ . '.

ISTOITE "V^.

It is believed, after considerable research,-
that, prior to'1861, no respectable jurist. Or
elementary writer ' of reputation' sufficient
to secure the publication of bis opinion,
had ever expressed the opinion that the.
President alone, without the authority of
Cotlgress, could suspend the privilege ofthe
^r\t of 'habeas corpus.' At the time our
Constitution was adopted, it was incontest-
ably established that tJiB King of Erig-
l^rid had'rio''such authority; an4 no lawyer
of that day could have imagined that any
such pbwpr could exist in the President,
withoiit express provision, to that- effect; in
the Constitution. ,' ' . ¦
It is, , pf . course* i welL un^cjer^pd,,, th4t
since the pubficatipn, (in,, 186 j), of the
opinion of the ,Qhief ;.Ju^ti^.e,| Qf.,the ,Su-
prepie Court of thp Unite4 rStates,. rei;en'ed
ro in the preceding opinion, many editors;
ofrn^^yspiapers, and even" so rrie' lawyers of
teputation, have written ' articles, more- or
ifess elaborate, for th6 jjijrpose' of maintain

ing the- power of, the President toisuspend
the privilegeunder consideration. ¦ i '
'The most respectable' -and prominent of
these Writers Were 'doubtless actuated by a
feudable' desir'6 'to istrengtberi anB-"sustain
the executive GoveTrimerit,J.f-in order to
'fen'able'-it ' to'- rtieet, with energy and efiicien-
cy, the mo^eritOris responsibilities 'nrider
which'it 'Was laborifl^,'iu the then existing
'cbriteti!^'-'' of the couritry; -and," regarding
the case of Merryman as ' exceptional,
rather than as the Soramencement- of a
permarient s'y'stetti'of arbitrary arrests;' they
earn'^kly endeayored, with'patriotic zeal, to
justify the- coiir^fe of the Executive;- '
.It "(viil npt t)e.forgptitQri that some' of the
,^^njp i^ersbns, -,• an,4, others, of more proiji-
irience, actuated by like lauda]j)le'.,.an4'pati'i-
otic motives, published ingeriioiis and
elaboaiate-i' articles,, »,p.ifo*ing . to their,., 'own
satisfaction, and'/pemhaps lo the, satisfaction
of most 'persons who are noti^lawyers-i—
ithat the poeeedi-ngs , of Captain , Wilkes,

8-4

APPENDIX.

in the case of the Englislj steamer, Trent.
ftora which the rebel emissaries Mason and,
Slidell were taken, were justified by t^"^
law of nations, and by the reported deqis-
ioiis pf the High Court bf Admirality 'in
linglarid; audit wiHdoubtiesslie remem,Ber-
ed, that such writers were subsequently in
structed, not only by the decisipn of our
own government, but by the concurririg
opinions of nearly every governnient of
Europe with which we have diplomatic
intercourse, that their zeal had led them tO
avow unsound opinions; and that they had
urged upon our government and people, as
established principles of international law,
entirely erroneous doctrines; — doctrines
which' Mr. Scward did not attempt to
maintain, and which, if persistently acted
upon by .our government. Would have in
volved us in a foreign war.

A review of these opinions,; respecting
the power of the President, ; would fhave
but little interest, . except to professional
readers ; and to prepare such a review would
require more leisure than the. writer of this
note is likely soon to be able to command.
It is sufficient to say that the write,rsrrefer-
red to have generally made two prominerit
pointsiin opposition to the opinion of the
Chief Justioei, They have endeavored to
convi«t,him of inconsistency, by quoting
from his opinion, in the case of Luthpr vs.
Borden, [7. Howard 1,] — not rega;'ding,,of
elseiCpncealipg the f^,. .that . that, case did
not atall inyoiye the question of the power
of the .President-:— or eiven of Congress^-
to , suspend the privilege of thp ; writ, i of
habeas, porpus. That was a casein which;
,, npt the executiye, but, the Legislature (^f
iRbode Island ha4 passed an act which, de
clared martial law in that. State; a.legisla-
tuji'e whose, powers are not limited' by any
express Constitutional provision,, and which
was organized and established under the
charter granted by Charies II, in 1663—
the only Constitution , which Rhode Island
had until 1842.
On the case of Luthei^ vs. Borden, an4
on the alleged biit somewhat visionary, ip-
conveniences and dangers of allowing hiil-
itary operations to bei , obstructed by tl^e

writ of,l}^b^as corpus, pr of waiting, for the
action pf Qpngress until it could be c6n-
yened, — after the necessity of suspension
should occur-^the.y have based ' their
strongest arguments ; overlooking, in rCspeet
to, thp last, the established and apkriov^l-
edgei doctrine, that the government'of the
United States is one of specially delegated
and limited powei;s; and that the Coristitu-^
tion'expressly declares,( amend ment art. 10)
that "The powers not 4clegated to the
United States by the Constitution, nor
prohibited by it to the States, are reserved
to the Slates respectively, or to the people."
Arguments frotri inconvenience and danger
cannot therefore be made the foundation
of powers not granted ; and the neglect of
Congress to exercise, in advance, its power
to authorize the suspension of theprivilege^
in certain cases, could no more give that
power to the President than their neglect
to make necessary appropriations could
authorize him to take money from the
¦Treasury without authority of law ; or their
neglect to establish tbe necessary Courts
could enable him to establish such Courts
by his own authority.
The writers alluded to, do not agree in
their yiewsof the .Constitutional provision,
in regard to the suspension of the privilege
of the writ of habeas corpus. One holds
that, the Courts and Judges authorized to
grant the writ, are, ou their own mere
motion, to declare the privilege suspended,
in the- cases mentioned in the Constitution.
Another holds that the President alone ha.s
power to suspend the privilege, , and, that
Congress has no, power to; suspend it by an
act of legislation;, another affirms the
power of the Presi4ent to suspend the
privilege without- the authority, of Con
gress,, but concedes the privilege may aj^o
be suspended by act of Congress; while
others concede tlje power to the President
only in the recess of Congress, and that on
the ground of necessity,— ^-holding that if
Congress be in s^ion.the power must be
exercised by the legislative department.
It would seeip to be a very plain, ques-
tioDt-T-eveu in tli§ absence.pf all authprity.
The Goi!lstitutipi)|^as not provided for the

APPENDIX.

85

issuing of the writ, or for compelling obedi
ence to its commands, It has not declared
in what cases, or under what cireumstances
it shall issue; or what courts or judges shall
be authorized to allow it. All this was
designedly left to the legislation of Cori-
gress: and until an act of Congress had
defined the cases in which it rriay be granted,
and the courts and, judges who are author
ized to allow it, no such writ could be
issued. In the same manner the Constitution has
declared that "the judicial power of the
United States shall be vested in one Su
preme Court, and in such inferior courts as
the Congress may from time to time ordain
and establish; " but 't has not declared the
number of judges of the Supreme Court,
nor the time or place of its sessions ; nor
,}},a8 it provided any means for enforcing its
.judgments or decrees. It has only partially
defined the extent of its powers and
jurisdiction. And it has not determined the
number, the organization^or the jurisdiction
of any of the inferior courts.
These details, like the provisions of the
law which should authorize -such courts and
the judges thereof to grant writs of habeas
corpus, are left to the national' legislature.
And in bdth'these cases Congress has legisla
ted. It has determined and limited the num
ber of judges of the Supreme Court and de
fined its jurisdiction. It has provided the
proper officers and the propei- means for en-
'forcing its decrees. It has establisheddistrict
and circuit courts and determined their pow
ers and jurisdiction. It has declared what
courts and what judges are authorized to
grant the writ of habeas corpus; and in
What cases they riaay direct its issue. All
this, every constitutional lawyer will concede,
coiild have been dorie by Congress, only iu
the exeJrcise of its law-making powers ; and
none will contend that the President has
any constitutional power or authority to
make, repeal, suspend Or change any of
the laws required or passed forthese pur-
' poses, unless he 'has the power to suspend
the privilege ofthe writ of habeas corpi/s
under and by the authority of the constitu
tional provision which has been so often
quoted in the preceding pages. Strike that

provision from the constitution and there is
no 'foundation for the argument that the
President has the powet' to suspend' the
privilege of the writ, given by a law of
Corigress ;, any more than there is. for insist
ing that he has the power of suspending
the laws which provide i»r. the electiottiof
rejii-esentatives iu Congress; impose duties
on imports,; establish courts and define
their jurisdiction; prescribe the duties of
public officers; and provide for the punish7
ment of crime.
The ppwer to pass all' tifiese laws is con
ferred upon Qongress alone; and though
the constitution does not, in express terms,
declare that Congress shall pass sucJi laws,
it certainly confers t^e power of legislation
under which they are passed ; and it assume.*
that Congress, withput being expressly re
quired to do so by the language of the
constitution, will pass such laws. In the
same manner the coristitutiori is silent in
regard to the duty of Corigress to provide
for the issuing of the writ of habeas corpus.
It assumes that Congress . w;ill certairily
enact the statutes necessary to secure ib
every other citizen in common with them
selves, the full benefits of that writ, under
all ordinary circumstances; and that the
only danger to be guarded against is the
suspension of the ordiriary privilege, urider
peculiar, exciting or extraordinary circum
stances. In the absence of any restrictive
constitutional provision. Congress might at
any time have suspended the privilege of
the writ, by law: for, in the absence of any
such provision, their authority over the sub
ject would have been unlimited. Is it not
then entirely clear that, if the constitutional
provision before referred to had never been
adopted as part of the constitution, the
control over this privilege, and over the law
which gives or secures it, would have been
vested in Congress' alone, as the sole deposi
tary of the law-making power? It must
be so: for no other department of the
government would or could have had ai)y
control over the subject matter. The whole
subject would have been regulated — indeed
must have been regulated-— by act of Con
gress. The courts -would then have been
bound to administer the law as framed and

86

¦ i ,;i^',','i A
APPENDIX.

passed by Congress ; and it would , have
been the -duty of the. President "to,>take
car* that the law was faithftilly executed.'?
' This brings lis to thecoBsiderajion of the
constitutional provision, which- iaf in the
following words : — " The privilege of the
writ of habeas corpus shall not be suspended,
unless when in' eases of rebellion or invasion
the public safety may require it."
This provision, or rather prohibition, is
found in the Section of the Constitution
which restricts the powers of Congress by
enumerating certain acts and things whieh
shall not be done, notwithstanding the fact
that the .grants of powers to be exercised
by Congress, made in' other arid prior. sec
tions of the same article, .would have enabled
Congress to do such acts' 'or things, if these
prohibitory provisions had riot been inserted.
The particular provision in question is,
theretbre, a negation pr denial of power, in
restraint or partial abrogation of an authority
already I given. "It is, not a delegation pf
power, but a limitation, — a negatiori rather
than a positivelenunoiatiori' of a power, the
previous, existence of which is recognized."
[Halleck, International Law, &c., p. 386.
Att'y Gerirs' Opinions, vol. 8, 372.]
Now the power, the previous ei^istence
of which is thus, recognized and,rp8trainprl;
is the power of Congress, — -thelaw,mak.iii
',power, — whiph,in the absenpe of any restric-
;,tion, and ip the exercise.of the authority con
ferred by the prior provisions of the s.-nue
article, might have suspended or annulled
I the- privilege of the writ of habeas corpus;
a privilege toibe established, regulated and
hmitod by act 'Of; Congres.s. No power is
delegated; no authority is conferred by this
¦provision; but it restricts, restrains- and
limits the powers already conferred. And
.these, powers had most certainly been conr
¦ferred i upoa Congress only, and not upon
the President. Without this provision, the
power of Congress over the subject matter,
wottld have been nnlimited, while the Presi
dent would have had no.poweror authority
.whatever, over the subject. ¦ Aad it is, sell-
evident that this restriction of ; the power
of i Congress cannot confer rSiiy authority
upon the Prpsideqt,

The simple effect ojf ,this provision, thpn,
is to take away the, powiCr of Congress, tp
suspend the privilege, in theii; -dispretion ;
and to, restrict th^t power of suspension, so
that it. can beexerpispd only "when, in cases ;¦
of rebellion or invasion, the public safety
may require it," ,
The clause is expressly and entir'^y pro- >
hibitory ; it restrains and limits a' power,
assumed to be in existence, but dofes not
confer any j)ower upon Congress, or upon
any other depai'tirifent of the governmen't.
\fi the absence of the prohibition, no con
stitutional lawyer could, for a moment, con
tend that the President had any power to
suspend the law securing the! privilege of
the ¦writ; and it wouW therefore appear to
be as certain as a mathematical detri'onstrii-
tiori, that Congress, arid Corigress only, can
'suspend, or authorize the suspension of this
privilege. ., It mjiy be proper, in this connection, and
in view of this negative and proljibitpry
character of the constitutional proyisipp, to
suggest the, question whether this restriction
upon the powers pf Congress or any other
provision of the Cotistitutipp of the United
States, authorizes Congress, to suspend the
privilege of the writ of habeas corpus, as
oriven by the laj^'S;^ of, the. States, defining
,.,lie; powers.and jurisdiction, and prescribing
the duties of State courts and judges,, .. ,
. It would seem tp be quite; , clear . upoin
authority, that the, restrictipn, referred to
is only a restraint upon the powers ftf , the
general .government and npt a iVCStriction
uppn the powers of the St^tp aiithgrjijies;
and, as it confers* no authority,. th[is, pro
vision, at all events, does not authorize
Congress to suspend the, writ whpn; autJiPI'-
ized, by State laws,, ,tp be issued, by,, the
pourf^.andjiudgps of the State. . ,,
, In the case of Barron vs the; Mfiyor . and
City of Baltimore,) (7 Peters' ..Rep, 543)
Chief Justipe Marshall, ip ,delivoring., tlie ¦
opinion of -the court upon thp.iqjiestipn
"Whether, the clause in the fifth amend
ment to ,the Constitution, which iuhi})it3
the taking of priyate property , fori, pubjic
use, without just compensation, , being in
favor of the liberty of the citizen, ought to

APPENDIX.

be so construed as to restrain the le^^atiye
power of a State, as well as tharof the-
United ,,S,t^tje.^," said: — "The Constitu-,
tion was ordained , and established by the
people of the Unite4 States for themselves,
for their ov?n government, and "ot for tte!
government , pf the individual States,—
Each State established a Constitution for
itsejfj and, in that Constitution, provided
SjUch limitations, and restrictions on the
powers of its particular government as, its
ju(^unent d.ictatad. The people of tlio
United States framed suCh a ^ government
for the United States as they supposed best
-ad&pted to theii- situation, and best calcu
lated to i promote thdr interests. , The
powers they Conferred on this government,
were to be exercised by itself; and the
limitations of power, if expressed in gen
eral terms, are naturally, and, we think,
necffisaijly 'appliuable to the government
created by the instrument; , They are, lim
itations of power graiited in the instrument
itself, not of distinct governments, framed
by difiierent persons, and for different; pur
poses."' And the following cases substan-'
tially affirm this doctrine: Livingston vs
Mayor Of New YOrk, 8, Wendell R.
gS; Bloodgood vs Mohawk R. R., 14 Wen
dell 51, and 18 do. 9; Murphy vs People;
2 Cowan 815,818; 5. Gray's Rep. 482,
486; and cases cited at end <if: next para
graph. Judge Hurd, in his valuable work (Hurd
on habeas corpus, op 133, 134,) says:
— "Rawle, in his "Views of the Constitu
tion," p 117, expresfiSs the opinion that the
restrictipn imposed- hy this Clause in the
Constitution, extends to the State^, as well
as to the United 'States. But it is' a settied
¦'rule of Coristructidn of that instrunient that
,tti'e limitations of power contained in it,
when they are expressed in general tei'iiis,
'apply orily to the governnient crealfed by it ;
and although this clause has not been' the
'subject of express'adjudicatibri, there is rio
'doubt that its construction is governed by

tbi8.;!;!4ej^,and, consequently, that the restric
tion do&s not extend to the States." And
he cites B5»rron vs. T^ M^ypi; and City of
Bp,ltiinor^' j/ftf supra; J ftmes v^ Common
wealth, 12, S, & R. 220; Barker vs The
People, 3d Cow. 7oi ; Reed vs Eice, g. J.
J. Marsh, 45; and Colt ys Evqs, 12, Cpiin,.
243. , , /'j.' ,"" ,,,,,',!V!'
Congress undoubtedly has the ppwer," as
necessarily inciderit to soriae power''ex-
pressly 'delegated, — that to declare war, or
that to provide for the punishment of trea
son, 'for example, — to 'declare' arid provide
that persons in custody, wilder the laws of
the'United States, in cases of rebellion and
invasion, shall riot be discharged frorri Cus
tody, urider a writ of habeas corpus,
whether subh writ shall be 'applfed'for under
the laws of the United States' or bf any in
dividual State ; as it dearly has the power
to provide for the arrest and trial iri the
courts of the United States, without 'the
interference of the State authoriti'es,' of all
persons charged with .ofl'ences against the
laws of the United States. ' Congress rt'aV
therefore prohibit the ' discharge of such
persons ori a writ of habeas corpUs issued
by State courts o'r' judges.
The case of Barron vs. the Mayor &c'. of
Baltimore, arid the other authorities above
cited, show very cleariy that the opinion of
the Chief Justice in the case of 'Luther vts.
Borden ' cannot be properly cited as an
authority in favor of the alleged power 'of
the President to suspend the privilege of
the writ' of AoJeas corpus. The act of the
legislatui'e of Rhode Island, under wljich
that case ai'O^e, was not at all'affebted'by
the constitutiorial provision now under di's-
cussion ; and k passage from the Koran, or
a fable of 'jiEsop, might, with as much pro
priety, have been cited, as the basis bf the
preposterous charge that the Chief Justice,
in the case of Merryman, had disre^a^'ded
his Own Opinion", and the ruling of ^he
Supreme Court in the case of Luther Vs.
Borden. ' ', , ',-i ••'.,!

APPENDIX.

nSTOTB IKi.

This was not the first time that the judi
cial authorities of the United States of this
judicial district have been insulted and the
ordinary course of justice unlawfully inter
fered with, by the orders Of an Executive
Department at Washington.
In August, 186 i, a prisoner in the actual
custody of the Marshal, under criminal
prpcess issqed .upon £in indictment for
treason found by the Grand Jury of that
district, was, in accordance with a telegraphic
despatch from the Secretary of State, taken
out of the district and confined in Fort
Lafayette. "Wliether still so imprisoned or
not is npt known to the writer; but it is
pertain that he has never been arraigned or
brought to trial for the offence charged
against him, or returned to the custody of
the civil authority. It is also understood
that npt long pripr to the case of Benedict,
a writ of habeas corpus,, issued by Mr,
Justice Nelson of tlje Supreme Court of the
United States, was disregarded by parties
acting under the orders of .tJhe War Deparl;-
ment. Many other cases in which the
constitutional authority of the judicial
department was wantonly disregarded have
occurred in other districts. Under such
circumstances, it would seem, to be the' right,
iif not the imperative duty of the judges, to
sustain by legal argument and the citation
of reliable authorities, the jurisdietipn which
the, constitution and laws have givpn them;
and in this constitutional,, legal and peace
able njode to resist and repel the illegal
encroachments pf the War Department.
In the early days of the Republic, Chief
Justice Jay and Associate Justice Cushing,
of the Supreme Court of the United States,
an4 Judge Duane, ^District Judge of the
Ignited States for the district of New York,
holding tiie Circuit Court of tiiat district,
did not hesitate to declare that they were
"unanimously of the opinion that, by the
Constitution of the United States, the
government thereof is divided into three
distinct and independent branches, and that
it is the duty of each to abstain from, and
to oppose encroachments on either," &e.
[1, Blatchford's Repts., p. 98.]

The provisions of the constitution itself
afford conclusiye evidence that the framers
of that once sacred, but now derided instni/-
ment, regarded' the indepeidfence of the
judges, and the perinanency of the rightful
power of the- Judicial ^Department as of the
highest importance ; and statesmen whose
opinions were formerly thought deserving of
confidence, have confirmed, by the strongest
language these opinions of those who framed
the constitution.
In his letter of the 30th of September,
1789, informing the Associate Justices of
the Supreme Court of the United States,
of their appointment. President Washington
said; — "'Considering the judicial system as
the chief pillar upon which our national
government must rest, I have thought it my
duty to nominate for the high offices iu
that department, such men as I conceived
would give dignity and lustre to our na
tional character." And in his letter Of the
5th of October, 1789, enclosing to John
Jay, his commission as Chief Justice of the
Supreme Court of the United States^ he
said ;^" I have a full confidence that the
iovp which you bear to our country, and a
desire to ' promote the general happiness,
will not suffer you to hesitate a moment to
bring into action the talents, knowledge and
integrity which are so necessary to be Exer
cised at the head of that department, which
must be considered as' the Key stone of our
political fabric" See Spark's Life: and
Writings of Washington, vol. 10, pp. 35, 36.
Mr. Webster's expressions of opinion are
not less decided. He says, in speaking of
the judicial power; [Webster's . Works,
vol. 1, 208] ; — " In every free and balanced
government, this is a most essential and im
portant power. Indeed, I think it is a re
mark of Mr. Hume, that the administration
pf justice seems to be the leading object of
government; that legislatures assemble;
that armies are embodied; that both war
and peace are made, with a sort of ultimate
reference to the proper administration of the
laws, and the judicial protection of private
rights."

Al-PENDIX*.

dd

Again, (Ibid, vol. 3. p. 31, S2 ;)— " There
is toothing, after all, so ihportant to indi
viduals as the upright administration of
justice. This comes home to every man ;
life, liberty, reputation, property, all depend
on this. No government does its duty to
the people, which does not make ample and
stable prorision for the exercise of this part
of its powers. Nor is it enough, that there
are oonrts which will deal justly with mere
private questions. We look to the judicial
tribunalst for protection against illegal or
nnantfHtiaional acts, from whatever quar
ter they may proceed. The courts of law,
independent judges, and enlightened juries,
are eitadels of popular liberty, as well as
temjpiles of primate justice. The most es
sential rights, connected with political Ub
erty are there canvassed, discussed and
maintained; and, if it should, at any time,
so happen that these rights should be i'n-
vaded, there is no remedy but a reliance on
the courts to protect and vindicate them."
* * * "These considerations are
tmtong those which, in my opinion, render
an Sidependent judiciary equally essential
to the preservation of private rights and
public liberty." And, see also, Webster's
Works, vol. 1, pp. 209,212,213, 214, 228,
229; v«rf. 2, pp- 300, 371—394; vol. 3,
pp. 6, 7, 26 — 32, 1'63, 482 — 436; and the
Federalist, Letters, 78 to 83-
Dr. Lieber also says, (Political Ethics,
Part 1, Book 2,. Sec. S4 and 95, Vol. 1,
. pp 3S6, 397,) " Destroy the bulwf rk of
the -fcnv '(and you do desti^oy it as soon as
you diestroy the independence of the judi- ;
ciary), and the mighty sea of power will
soOn break irn upon the people.'
By the independence of the judiciary is
meant a judiciary that, in the adiffliiMstra-
tSon of justice, cannot be' infloeHced or
overawed by any one, or anythiri^ neither
¦ by monarch. President, people or populace,
but which is strictiy dependent upon the
law and the spirit which made it, so
that no citizen who ought to be judged by
it, can be sent from it, nor can be judged
or punished without judgment by the same,
nor otherwise be injured in any way by the
protection of thb laws being withheld from
him. The more deeply and earnestly we
(12)

study history, the more sacred will, appear
this wondevfml ittstlMioni of an iadlepeudent
jndiciary." * *
" By an ind«|}end«Bt judiciary, the citizen
stands in each individual case, 'when the
law comes hpme to him, under th«i consti-
tutiional protection of the judiciary,; by the
independence of the jndiciary ailoae, the
Amei'ioau judge -can assume that elevated
function of declaring a law, when it finally
strikes an individual, to be unconstitutional ;
a^principle of which the ancients knew very
little, we may say nothing, if compared in
its practical use to modern times. B'y the
independence of the judiciary alone, an in
dependent development of the law, accord
ing to the genius of the people and the
essential wants of the times, becomes possi
ble. Without it, tho best intended and
most liberally conceived institutions and
political organism.s willailways become what
a distinguished French jurist said, in 1818,
of the . administration of justice and the
Constitution of his country: 'We have
contented ourselves to place a magnificent
frontispiece befcM'e the ruins of despotism ;
a deceiving monument, whose aspect
seduces, but which makes one freeze with
horror when entei'ed ! Under liberal ap
pearances, with pompous words of juries,
public debates, judicial independence, i'udi-
vidual liberty, we Ore slowly led to tlie
abuse. of all these things^ and the disregard
of all rights; an iron rod is used with us
instead of the staff of justice."
Again Dr. Lieber says : ('Political Ethics,
Part 2, Chap. 4, Sec. 8.) "From all that
has been said of justice, as the main and
broad i foundation of the State, of ^he
superior sway of law as an indispensable
requisite of civil liberty, and the necessary
independence of the judiciary,; it must
appear that there is no member' of the
State or officer of government superior in
importance to the judge, and very few in
deed, of equal importance with him."
Stephens says; — (2. Stephens' DeLolme,
p. 569,) "In this distinct and seperate ex
istence of the judicial power, in a peculiar
body of men, nominated indeed, but not
removable at pleasure, by the crown, con
sists one main preservative of the pub-

ao

i.tf>ENbtX.

ic liberty, which cannot subsist long in any
state; unless the administration of common
ustice be, in some degree, seperated both
from the legislative, and also from the ex
ecutive power."
Mr. Justice Story, in his commentaries on
the Constitution, says; (sec. 1621) "Indeed,
a republic with a limited Constitution, and
yet without a judiciary sufficiently indepen
dent to check usurpation, to protect public
liberty, and to enforce private rights, would
be as visionary and absurd as a society
organized without any restraints of law. It
would become a democracy with unlimited
powers, exercising through its rulers, a
universal despotic sovereignty. The very
theory of ''a balanced republic, of restricted
powers, presupposes some organized means
to control and resist any exercises Of author
ity. ' The people may, if they please, sub-
riait all power totheir rulers fOr the time
being, but then the government should
receive its true appellation and character.
It would be a govem'ment of tyrants, elect
ive, it is true, but still tyrants; and it
would become the more fierce, vindictive,
arid sanguinary, because it would perpetu
ally generate factions in its own bosom
who could siicceed only by the ruin of their
enemies. It would be alternately character
ized as a reign of terror and a reign of im
becility ; it would be as corrupt as it would
be *darigerdus. ' It would form another
iriodel of that profligate and bloody democ
racy which, at one time in the French revo
lution j darkened by its 'deeds the fortunes
of Prance and left to mankind the appal
ling lesson, that virtue and rehgion, genius
and learning, the authority of wisdom and
the appeals of innOcence are unheard and
unfelt, in the frerizy of popular excitement;
and that the worst crimes may be sanction
ed, and the most desokting principles incul
cated under tbe banners and in the name

of liberty. In human goverlnments, there
are but two con(!t*blling powers ; the p9\^er
of arms and the power of laws. If the
latter are not enforced by a judiciary,
aboye all fear and above all reproach, the
former must prevail ; and these lead to the
triumph of military over civil institutions.
The framers of the Constitution, with pro
found wisdom, ^id the corner stone of our
national republic in the permanent indepen
dence of the judicial establishment. Upon '
this point the vote was unanimous. They
adopted the results of an enlightened-ex
perience. They were not seduced, by the
dreams of human perfection, into the belief
that all power might be safely left to the
unchecked operation of the private ambition
or personal virtue of rulers. Nor on the.
other hand were they so lost to a just esti-.
mate of human concerns, as not to 'feel that
confidence must be reposed somewh^'e, if
.either efficiency or safety are to be consult
ed in the plan of government. Having
provided amply for the legislative and ex
ecutive authorities, they established a bal
ance-wheel, which, by its independent
structure, should adjust the irregularities
and check the excesses of the occasional
movements of the system."
And again; sec. 1624: — "They" (the
people[of jthe United States) "have chosen to
establish a Constitution of government with
limited powers and prerogatives, over which
neither the executive nor the legislative
have Sny power, either of alteration or con-.
trol. It is to all the departments equally a
supreme, fundamental, unchangeable law,
which all must obey, and none are at liberty
to disregard. The main security . relied on
to cheek any irregular or unconstitutional
measure, either of the executive or legisla
tive department, was, as we have seen, the
judiciary."

91

SEOOHD OPINION;

A ND MEMOEAND A OF OTHEE GASES AND AUTHOEITIES.

ON HABEAS CORPUS.
In the Ma-tter of
Judson D. Benedict.

4

HALL, District Judge.
On the 23d instant, I allowed a writ of
habeas corptts, directed to "Edward I.
Chase, United States Marshal," command
ing; him to have the body of Judson D.
BuiiKDicT, by him imprisoned and. detained,
as it was said, together with the .time and
cause of such imprisonment and detention,
before me on the 25th instant, at ten o'clock
iri the forenoon, at the United States Court
Room in this city. — On the return day Of
the writ, the Counsel for Benedict furnished
proof of the service of the writ upon Mr.
Chase, in this city, about five o'clock in the
afternoon of the day on which it was issued.
The affidavit of Harry B. Ransom, Esq ,
who.tnade the service, also states that he
and said Chase went together on the same
train of cars to Lockport; that he the depo
nent, saw, after his arrival there, the said
Benedict in front of said Chase's Office, in
Lockport, — said Chase, as deponent was
informed and believed, being in his Office
at the time.
Mr. Chase, the Marshal, did not produce
Mr^ Benedict, the prisoner, on the return
day of the writ; nor did he appear in per
son to make return thereto; but A. G.
Stev.en.s, Es^., delivered me the writ with a
statement or return annexed thereto, , of
which the following is a copy :

"To the Hon. Nathan K. Hall, District 1
Judge of the United States, for the >¦
Northern District of New York : j
The anneaed writ was dehvered to me,
between five and six o'clock in the after
noon of the 23d day of September inst.
Before that tinie, and about noon of that
day, Judson D;,genedict, the person named
in that writ, had been arrested by me for
disloyal practice, by order of the President
of the- United States, and put in charge of
Daniel Q. Tucker, with direction to convey
«,him tp the Old Capitol Prison, in the city
of Washington, and said Tucker immedi
ately left Buffalo, with the prisoner, for that
purppse. Under general orders made t)y the Presi
dent, through the War Department, bearing
date the 8th day of August, 1862, said
Benedict had been, on September 2d, 1862,
arrested by my Deputy, A. G. Stevens, for
such disloyal practice, and said Deputy was
ordered by the War Department to detain
him in custody until the further order of
said Departriierit. For safe keeping, said
Benedict was removed from Fort porter to
the jail of Erie County.
Afterwards, as is said, a writ of habeas
corpus, directed to sai4 Stevens, and Wil
liam F. Best, the jailor, was delivered tb
said jailor. The War, Department, was in
formed by said Steyens of the allowance of
said writ, apd said Stevens was directed -by
said . Department, not to regard said writ.
3ut said Wm. F. Best, the jailor, refused

9^

BENEDICT HABEAS COBPUS CASE  SECOND OPINION.

to allow me or my Deputy, Mr. Stevens, to
have any control of the prisoner, or of the
writ, and avowed his intention to make re
turn to said writ, and produce the prisoner
before your honor.
I informed the War Department of such
refusal and avowal. In answer I received
an order made by the Secretary of War,
saying, in substance, "Your Deputy, Mr.
Stevens, was directed to disregard the writ
of habeas corpus. If Stevens or the jailor
permits Benedict to be discharged on habeas
corpus, arrest him again and convey him
to the Old Capitol Prison at Washingtori."
The original order was delivered by me
to Mr. Tucker, into whose charge I delivered
the prisoner, and I have no perfect copy.
The above is a substantial copy, and in all
essential particulars is correct.
In pursuance of spch order, after said
Benedict was, on the 23d inst., discharged
frOm the custody of said Bes't, and said
Benedict had left the U. S. Court Room, I
arrested him and put him in charge of Mr.
Tucker, with the directions above stated.
A formidable insurrection and rebellipn
is, aa is well known, now in progress in this
country, and the writ of habeas corpws sus
pended, and the President of the United
States, by one of the ordprs referred to,
made on the 8th of August, declared the
same to be suspended in cases of disloyal
practices. I would alsO refer your Honor
to the Proclamation of the President of the
United States, of the 24th Sept. inst.'
I, therefore, understand that the above
arrests are npilitary arrests, in relation to
which the writ of habea^ corpus is .sus
pended. I have, however, out of respeCt to your
Honor, and the judicial authority of the
country, thought it my duty to return to
you the annexed 'firitof habeas corpus, and
make the foregoing statement.
Very respectfully,
Edward I. Chask, U. S. Marshal,
Dated theaSth day of Sept., A. D., 1862."
The Counsel for the prispner objected to
the receipt of this statement or rctprn of
the Marshal, on the ground that it was npt
a sufficient or proper return to the writ;

but as it appears to be in the nature of a
return, containing a statement of the reasons
which had induced the Marshal, to whom
the writ was directed and deUvered, to de
cline obedience to its commands, I can
see no sufficient ground upon which to
maintain the counsel's objection. The re
turn is therefore received, and forms a part
of the record of the proceedings in the case.
The counsel for the prisoner also ask^d,
in substance:
1st, That an order be immediately made,
discharging the prisoner.
2d. That proceedings, by order or attach
ment, be immediately taken for the purpose
of punishing the Marshal for a contempt
in refusing to comply with the requirements
of the writ of habeas corpus.
I declined to make an order for the pris
oner's discharge, believing, that at common
law, an order for the discharge of a prisoner,
for whom a habeas corpus had been issued,
could not regularly be made, by a Judge
at Chambers, until the prisoner was pro
duced under the writ. Besides, the prisoner
was then, as I supposed, already beyond the
limits, of my district; and, consequently,
where my order of discharge could have no
legal operation or effect.
It is true that I understood the counsel
for the prisoner to suggest that he desired
an order for the prisoner^ discharge^ , al
though he was out of my district, for the
reason that, he supposed that an order of
that kind, made by, a judicial officer, would
be respected and obeyed, even out of his
district; but, notwithstanding the apparentiy
serious manner of the counsel, I cannot but,
regard the suggestion as practically ironies!.
At all events, it could have no foundation
in law or logic ; unless it can be logically
argued that because a similar order, regw-
larly made, while the prisoner was beifore
me, in my own district, and within my con
ceded jurisdiction, was disregarded and con
temned, the order now asked for, irregu-
lariy made, while the prisoner was not be
fore me, would be regarded and obeyed,
l;)eyond my district and jurisdiction, where
it had no Ipgal force, and might, therefore,
be properiy disregarded.

BENEDICT HABEAS COBPUS CASE  SECOND OPINION.

93

Haying no disppsition to go one step be
yond tb© limiitft pf ju,diieial duty, knowing
that I «bould diO not|;^ing to bring the judi
cial d^pfirticnont of the government into con
tempt by Qvaratepping those bounds and
making orders wfeich can legally be disre
garded, and having, (by an examination of
a decision of the Supreme Court of Massa
chusetts,) been confir^ied in my impressions
that I can make no order of discharge until
tbe prisoner is before me, I adhere to the
opinion expressed on the return day of the
writ, *nd to tbe decision then made, deny
ing the order for the discharge of the pris
oner as prayed for by his counsel. (See
Hnrd on Habeas Corpus, 244. Common
wealth t!». Chandler, 11 Mass, Rep. 33).
I am aware that in this State, and in
some others, statutes have been passed, au
thorizing , proceedings upon the writ of ha
beas corp'us and the discharge of a prisoner,
in certain cases, where he has not been pro
duced ; but these proceedings, in exceptional
cases, being fpwdpd- upon special statutes,
only serve to show that the general rule is
that declared in Massachusetts. And I know
of no act of Congress which authorizes me,
under the circumstances of this' case, to
make the order asked for.
The question, whether I shall proceed to
punish the Marshal for a contempt in dis
obeying tbe writ of habeas corpus, is en
tirely different m character from that I have
just been considering; a,nd, also, from tho
questions which w-ere under consideration
when the prisoner was before me some days
siflce, under the fojrmer writ of habeas cor
pus. So long as tbe question of the pris
oner's discharge from custody was before
me, every legal presumption was in favor
of his right to his liberty ; and those who
sought to continue bis imprisonment were
bound to show affirmatively that there was
legal authority for his detention.
,TJb& question now presented, is not
whether the prisoner shaJl be discharged
from iipprisonment and restored to liberty,
but whether the officer who assumed to ar
rest asd hold him, shall he deprived of his
libe.rty, and committed to prison. Upon
questions of this character, the right of the
iia,nid and pfthe prisoner is tho same,

and each has a right to demand that he
shall not be imprisoned or restrained of his
liberty without authority of law. And this
right is not peculiar to these parties. It.
does not result from the clei-ical character
of the one, or. the official position of the
other, for it is the common birth-right of
every American citizen, and the Marshal
and the Clergyman but share it equally with
the beggar at their gate.
It is, therefore, my duty, before I g,uthor-
ize any restraint upon the liberty of a citi
zen, to see that I can proceed a'k every step
upon the most stable and solid ground.
And this is more especially the duty of every
judicial officer in cases of alleged contempts,
because the power of punishing for a con
tempt is exercised upon the sole judgment
of the Court or Judge before whom .the
proceeding is had, without the intervention
of a jury ; and ordinarily, (as would be the
case in the present instance,) without any
right of appeal. It is very certain that no
judge, who has a just regard to the rights
of his fellow-citizens, can need any sugges
tions, other than those of his own judicial
mind, to convince him that such a power
(a power which I have never yet had occa
sion to exercise, during a considerable period
of judicial service, in the Courts of this
State and of the United States,) should be
exercised with extreme caution, and only
after mature deliberation.
After a careful examination of the return
made by the Marshal, I am satisfied it is
clearly insufficient It does not directly
siate, and certainly it doas not indirectiy
show that' the prisoner, Benedict, "was not^
in his (the Marshal's) possession, custody or
power, at the time of the service of the
writ, or at any time after." [Hurd on
Habeas Corpus, 248, &c., and cases there
cited.] On the contrary, it shows that the
prisoner was arrested in pursuance of an
order which directed the Marshal to arrest
him, and to convey him to the old Capitol
Prison in Washington : and under such or
der he must have been iu the possession,
custody and power of the Marshal when
the writ was served, and afterwards, as
shown by the affidavit of Ransom, annexed
to the copy of the writ. There is. no state-

94

BENEDICT HABEAS CORPUS CASE— SECOND OPliSIOU.

ment or pretence that Tucker acted: in any
other capacity than as Deputy or Assistant
of the Marshal ; or that any effort was made
by the Marshal to obey the writ. The re
turn, in fact,' shows that there was no in
tention to obey the writ ; but on the con
trary,' that there was fropi the first a settled
purpose to disobey it,- and to rely upon the
action and orders of the War Department
to justify or excuse such disobedience. The
return a,vows that Benedict was put into
the possession of Tucker, (who is officially
known to tri& as a general ' deputy of the
Marshal,) for the purpose of conveying, him
to Washington ; and it is fair to presume
that the report that Benedict was, the next
day, tfiken out of the State, on his way to
Washington, is not untrue.
I cannot doubt, therefore, that if 'I had
legal power and authority to grant the writ
in this case, as I have already decided after
mature debberation, there has been a eon-
tempt oi' the authority of the law, on the
part of Marshal Chase,- in deliberately re
fusing obedience to the writ.
What is my power, and .what is my duty
under the circumstances of this case ? is the
question which yet remains to be considered.
I can make an order requiring a furtli<'r re
turn ; but if such order should be disobeyed,
can I, and ought I to issue and enforce the
execution of an attachment for snch diso-
.bedience ?
An order for a further return, if obeyed,
would not, under the known and conceded
facts of this case, produce any results bene
ficial to the prisoner; and no return in ac
cordance with such facts, would show either
that the command of the writ had beeri
obeyed, or that (in the view I have taken
of the case,) there is any legal excuse for
disobeying it. Indeed, I do not understand
that the Marshal can properly take, or de
sires to take any other position than that
he has disregarded the writ under the ex
press orders of one of the chief Executive
Departments of the Government. The case
presents a conflict of opinion between the
Executive and Judicial Departments of the
Government; — and the Marshal is placed
in a position in which he must |disregard
the authority of one or the other of such

departments. He is an executive officer,
and executive officers are ordinarily expected
to follow^the instructions.. of their superioj-s
in the executive department : but a ntarshal
is peculiarly situated. He is properly con-^
sidered as the executive officer of the courts
of his district, and is,' ordinarily, to obey
the orders, arid execute the process of the -
Judicial Departriient. The act of Congress
which provides for his appointment, in order
to secure obedience to ail judicial process,
also provides that the Marshal, and also his
deputies, shall take, "before they enter on
the duties of their appointment, the follow
ing oath of office : — I, A. B., do solemnly
swear or affirm, that I will faithfully execute
all lawful precepts directed to the marshal
of the district of  , under the authority
of the United States, and true returns
make; and in all things will well and truly,'
without malice or partiality, perform the
duties ofthe office of marshal (or marshal's
deputy, as the case may be,) of the district
of  , during my' continuance in office,
and take only my le]gal'fees. So help me
God." While, therefore, the Marshal is, in one
sense, the officer and agent of the President,
to aid him in the discharge of his constitu
tional "duty, "to take care that the laws be
faithfully executed," he is, in a higher'sense,
the officer of the constitution, and the law,
and bound by his oath of office to carry
the process of the law into execution. He
is, nevertheless, in the power of the Presi
dent; for the President can remove a mar
shal who refuses to execute his orders, and
may. appoint in his stead a marshal' who
will execute them. If I am' right in my
conclusions, the Marshal should have obeyed '
the writ, for that has the authority of law,
to which rulers, officers and people' are alike
subject; but if I am wrong; and the War
Department is right, his disobedience is
justified. I regard the orders and action
of the War Department as direct and clear
violations of the legal and constitutional
rights of the citizen, and that department
disregards my judicial opinion and official
.action, as erroneous,' unauthorized and im
proper. The Marshal — placed in a position,
not of his own ohoosing-^mnst, therefore,'

BENEMDT HABEAS COEPUS CASE— SECOND OPIMON.

95

disobey the orders of the War Department
or the command of the writ of habeas cor
pus; and must, in either event, expose him
self to very unpleasant and injurious conse
quences, even if the writ of habeas corpus
has been legally suspended. Such a sus-
penaon may prevent the prisoner's discharge,
bnt it leaves untouched the question of the
illegality of his arrest, imprisonment and
deportation. If these are unlawful, the
Marshal and others engaged in these arrests
are liable in damages in a civil prosecution ;
such damages . to be assessed by a jury of
the country. Besides this civil liability, the
parties engaged in making this arrest and
carrying the prisoner out of the State
and' beyond the protection of its officers
and tribunals, may, perhaps, be subject to
criminal punishment.
In the proceedings, civil and criminal,
which may be instituted under the laws of
the State, the great questions, involved in
this case, may be deliberately determined,
and they may be taken by writ of error or
appeal, before the highest judicial tribunals
of the State and nation. There is, there
fore, no necessity, in order to prevent a
failure of justice, that I should exercise the
power of proceeding as for a contempt, in
this case, if there is the shghtest doubt of
the legality or propriety of such a proceed
ing. And a subordinate executive officer,
placed in the dii^greeable position now oc
cupied ¦ byi the Marshal, may properiy ask
t%t a single judge, in a proceeding where
there is no appeal, shall not punish him for
obeying the orders of the Chief Executive,
especially as the law affords the party
aggrieved a full remedy for his arrest, im
prisonment, and deportation, if they cannot
be legally justified ; and has also provided
for the punishment of the arresting officer
as a criminal, if he has proceeded without
authority. As I understand the laws of the
State, the Marshal can be abundantly piin
ished if he has acted withput dtie authority,
without resorting to the proceeding for a
coritempt ; and even if I did not doubt my
legal authority to do so, I should not be in
clined to take proceedings for that purpose.
Indeed, to be subject for two years to a civil
action for such damages as a jury to^y

award the prisoner for his arrest and im
prisonment, and also to be subject for years to
indictment and trial in any one county, from
Niagara to New York inclusive, even if such
proceedings were almost certain to result
in verdicts in his favor, would be to me, and
I doubt not will be to the. Marshal, a much
severer punishment than I could, under the
circumstances of this case, consent to inflict.
In justification of my course, in thus de
ciding that il is inexpedient, even if I have
the power, to proceed against the Marshal
by attachment, 1 propose to ref6r, very
l)riefiy, to the provisions of the Statutes of
this State, which have infiuenced me in
reaching that conclusion. I also propose
to refer to them in this opinion because a
general knowledge of these provisions may
induce arresting officers, and those who in
cite them to action, to be more careful to
ascertain, before making or causing an ar
rest, that such arrest can be justified. And,
for a reason far more important than the
iirterests of those officers, or my own justi
fication, I deem it proper to make such ref
erence; — in order that I may show that the
law has made abundant provision for the
redress of the injuries inflicted by illegal
arrest and imprisonment and the illegal re
moval of the party arrested and imprisoned
beyond the jurisdiction of the State Courts,
for the purpose of repressing any disposi
tion to resist these arrests by violecce, in
stead of relying upon legal proceedings for
redress and punishment.
The statutes of the State of New York
provide, in the most . ample and effective
manner, for the discharge of all persons il
legally restrained of their liberty ; and they
require the courts and judicial officers of
the State to allow the writ of habeas corpus,
under a penalty of $1,000, unlessit shall ap
pear from the petition therefor, or from the
documents annexed, that the party applying
for such writ is, by the provisions of the
statute, prohibited from prosecuting such
writ. And the article which provides fully
for issuing such writs, also contains the fol
lowing sections : —
"Sec. 61. Any one having in his custody,
or in his power, any person, who, by the
provisions of this article, would be entitled

96

BENEDICT HABEAS COEPUS CASE — SECOND OPDflON.

to a writ of habgai corpus or certiorari, to
inquire into the cause of his detention, who
shall, with intent to elude the service of any!
such writ, or, to avoid the effect thereof,
transfer any such prisoner to the custody, or
place him under the power or control of an
other, or conceal him, or change the place
of his confinement, shall be deemed guilty
of a misdemeanor. ;
"Sec. 6.2. Any one having in his custody,
01' under his power, any person for whose
relief a writ of habeas corpus or certiorari
shall have been duly issued, pursuant to the
provisions of this article, who, with intent
to elude the service of such .writ, or to
avoid the effect thereof, shall transfer suoh
prisoner to the custody, or place him under
the power or control of another, or conceal
him, or change the place of his confinement,
shall be deemed guilty of a misdemeanor.
*'Sec, 63. Every person who shall know
ingly aid or assist in the violation of either
of the two last proceeding sections, shall be
deemed guilty of a misdemeanor.
"Sec. 64. Every person convicted of any
offense under either of the last four sections,
shall be punished by fine or imprisonment,
or both, iri the discretion of the Court in
which, he shall be convicted ; but such fine
shall not exceed $1,000, nor such imprison
ment six months." 2 R.S. pp. 571 and 572.
It is further provided by the statutes of
this State, (vol. 2d, 4th edition B. S, p. 857)
as follows :
"Sec. 30. Every person who shall, with
out lawful authority, forcibly, seize and con
fine any other, or shall inveigle or kidnap
any other, with intent either ;
1. To cause suoh pther person to be
secretly confined or imprisoned in this
State against his will; or
2i' To cause any such person to be
sent out of this State against his will;
or, 3. To cause such person to be sold
as a slave, or in any way held to ser
vice against his will, shall, upon con
viction, be punished by imprisonment
in a State prison, not exceeding ten
years.
"Sec, 31. Every oflense prohibited in
the last section, may be tried either in the

county in- which the same may hay« been
committed, or in any'county through- which
any person so kidnaipped or oofa#ned, shall
have been taken, while umder such coofilne-
menti" ('*) . '
And in addition to these provisions of tbe
New York Statutes, it must also bo remem
bered that the prisoner has been taken to
Washington, and that in December next
the questions in rcgai-d to the legality of his
arrest, imprisonment and deportation, may
be inquired into by the highest judicial tri
bunal of tbe United States, in his case, or
that of some other prisoner in like condi
tion. To the decisions of that august, tri
bunal all will cheerfully sutjmit ; and if I
am wrong in the view I have taken of the
questions involved in the arrest and impris
onment of Benedict, my error will bo cor
rected. I have already ind:mated that there was
doubt in regard to my power legally to
punish the Marshal for a contem^ in this
case, and I propose now to state very briafly
the grounds upon which that doubt is based.
Process issued by the courts and jwlidal
officers of the United States, is issued in
the name of the "President of the Uisited
States ;" and all process authorieiag the ar
rest or Commitment of any pei-son, is by
law and custom directed to the Marshal of
the district) for execution and return, except
in the cases where other provision has been
made by act of Congress. In ordinary
cases, then, process issued by me in pro
ceedings for a contempt, would commence
thus: "The President of the United States
of America, to the Marshal of the Northern
District of New York, greeting: You are
hereby commanded that you take," &c. —
and thus the process of the law, coramittitig
the Marshal for a contempt, would run in
the name and authority of the President,
and would direct the Marshal to conamit
himself to prison. Sadi a process would
surely be practically, and would probably
be legally, ineffective for that purpose; and
Congress has not, sO far as I can aseertaitn,
made any provision for authorizing a jiidge
at chambers to issue procpss iu a different
(*) See Extract ttom Kecorder HoStean'a Ohufj^ to
the Qrand Jury of Ne-W York, post p. 9T.

THE SECOND ARREST OF ME. BENEDICT.

97

form, in a case like that now before me.
It is true thO Judipiary Act provides (sec. ^
28,) that "In all causes wherein the Mar
shal or his deputy is a party, tbe writs and
precepts therein shall be directed to such
disiriterested person as the court or a judge
thereof may appoint, and the person so ap
pointed is hereby authorized to execute and
return the same ;" but this provision appears
to extend only to process issued in causes in
court. At all events, it is not clearly appli
cable to such a case as this'; and the power
of a judge to direct process to an unofficial
person, without express authority by statute,
is too doubtful to justify me in issuing any
such process, or asking any unofficial per
son (if any one would undertake the duty)
to attempt to execute it. Such a process,,
in the hands of any party willing to take
tbe risk of its execution, would probably be
resisted as unlawful ; and a bl-eacb of the:
peace would be the inevitable result of any
attempt to execute such process. No judge
should do anything tending to such a result,
where his duty permits him toi avoid do--
ing it.
For the reasons I have now given, I shall
decline issuing process against the Marshal
for his disobedience to tbe writ of habeas
corpus. September 30, 1362. ;i j

; THE SECOND ARREST OF
MR. BEINEDICT.
It will be seen by reference to the state
ment of facts made by Mr. Sa-win, 'the
counsel of Mr. Benedict, (ante fii 25) that
he has incorporated into his statement
(pp. 33 to 38) the Courier's report of the;
circumstances ofthe secorid arrest' of Mr.
Benedict, immediately after he had been
discharged on habeas corpus. This second
arrest was made by the officer whose deputy
had rnkde the first arrest, and 'who had but

just been called upon by the Judge, to
show, if he could, that the prisoner had been
guilty of an offence, in order to prevent
his discharge. , . -, ,
To the report then made, littie'need be
added, except that Mr. Benedict states tjhat
he was placed in a carriage with three
deputy marshals, as guards, and was thus
taken to Lockport;— althpugh the next
train of cars on the railroad from Buffalo to
Lockport would have started out of Buffalo
in about an hour; — that about 9 o'clock
the same evening they again started in a
carriage, and about' three O'clock the, next
morning arrived at Batavia, 36 miles east
of Buffalo on the New York Central Rail
Road ; and that at 6 o'clock they took the
cars for Canandaigua, and from there to
New York, thence to Baltimore and Wash
ington. As the mail train on the New York Cen
tral Railroad left' Buffalo' for Albany, via
Batavia and Canandaigua at three o'clock,
P. M., or about two hours after Befaedict's
arrest; and as two express passenger trains
left Buffalo for Albany between that tirne
and the time of his actually leaving Batavia,
it is quite apparent that the Marshal, or hjs
deputies, intentiorially took this unusua;l and
roundabout course for the pur]jose of mis
leading Mr. Benedict's friends, arid thiis
preventing the release of Mr. Benedict 'by
proceedings on habeas cqrpus under the
laws of the State; or else that they feared
that the indignation of an outraged people
would produce some further, and perhaps
forcible eflbrt to enforce the lawful rights
of Mr. Benedict against his kidnappers."
Mr. Beae4ict was taken to the 'Old Cap
itol Prison, at Washington, and, after spme
five! or six weeks confinemerit, was dis
charged, without any trial or legal acpusa-
tion, by the Judge Advocate. He states
that when discharged he asked the Judge
Advopate" Why he had been imprisou'd ?''
and was 'told "It was to show northern
people that the military law was superior
Ito tha civil." ' " ' '''

(13)

S8

RECORDER HOFFilAN's DHAE&E.

EXTRACT
From the Charge of Recorder, Hoff
man, TO THE Grand Jury or the City
AND liotJNTY OF NeW YoRK, DECEMBER
1862: Court of General Sessions.
Before Kecorder Hoffman.
The Grand Jury of this court were
sworn in oii Monday morning, James W. ^
Underbill, ibreinsin. Previous to his Hon- j
or charging, the jury,J Mr. District Attor
ney Hall i-equested the Recorder to call
special attentiori to, the laws in, reference to
kidnapping and abduction. Mr. Hall re- j
marked that a number of complaints ofj
this nature had been filed in his office. — i
After some preliminary remarks upon the
ordinary topics to which the court is requir- 1
ed tb call the atterition bf the Grarid In-
quest, Becorder Hoffmari made the follow
ing important observations upon illegal
arrests, -frhich will be read with interest by .
every citizen of this State: —
"At'thS close ofthe last week the District
Attorney requested me, in my charge to
you to-day, to give you especial iristructions
in relation to the laws of this State against
kidnapping. He intimated to me that
cases had been brought to his notice in
which it was alleged these laws had been
violated, and which he would probably feel
bound to submit to you for your considera
tion and action. Having repeated that re
quest to-day, I deem it my duty to give
you the desired instructions, and I shall do
so briefly and yet pointedly. It is so gen
erally reported and beHeved that for many
months past numbers of persons have,
without any lawful authority, been seized
on and removed from this State against
their will, thai great importance attaches to
the subject under consideration. At the
same time it is so generally understood that
these seizures and removals have been made
under some claim or pretence of lawful
authority, that it becomes necessary to de
fine and state the law with care, so that all
who will may understand it. That law, as
I shall now state it, will, I think, commend

itself to the good sense of all, who will ejc-
amineit with unbiased judgment, and wijl
be the law pf this court while I presi4e in
it, until reversed, if reversed it evpr sliall be,
by some higher tribunal. The Constitution
pf the United States and the Constit,ution
of the State of New York have guaranteed
to all citizens the security of their persons
against unlawful seizures, and the laws of
this State have in substance declared , that
whoever shall 'violate this constitutional
guarantee, shall be deemed guilty of. a
felony. The statute provides (vide Revised
Statutes, 5th edition, volume 3, page 943,
seption 30), as follows, viz: Every person
who shall, without lawful authority, forcibly
seize and confine any other, or shall invei
gle or kidnap any other, with intent eidier :
1. To cause such other person to be
secretly confined or imprisoned in this State
aorainst his will; or
2. To cause such other person to be sent
out of the State against his will ; or
3. To cause such other person to be sold
as a slave, or in any way held to service
against his will, shall, upon conviction, be
punished by imprisonment in the State
prison not exceeding ten years.
Whoever, within this State, arrests a
person charged with an offence alleged to
have been committed therein against the
laws, either of the State or of the United
States, is bound to convey the pereon so
arrested without delay before the : proper
magistrate or other judicial officer within
the State, to be dealt with according to
law. Any seizure of the person of a citizen
for any other purpose is without lawful au
thority, and any detention or confinement
of a person so arrested for any longer time
than may reasonably be required tp convey
him before such magistrate or officer is also
without authority of law. The removal of
any person from this State into any other
State or Territory, to answer to any charge
of having committed here an offence against
the laws of either the United States or the
State, is without authority of law; and
every person, whether he be an officer or
private individual, who shall seize and con
fine any person whomsoever, charged with

RECORDER HOFFMAN S CHARGE.

99

haying committed any crime within the
State, ,with intent either secretly to confine
or imprison him here, or to remove him
out of the State against his will, acts in
violation ofthe statute I have just read to
you, and renders himself liable to indict
ment, and imprisonment. Upon the trial
of such indictment, the fact that such
seizure, confinement and, removal was by
order of the President of the United States,
of any member of his Cabinet, or other
officer .of the government, will constitute no
legal defence. Neither the President, nor
any member of his Cabinet, or other officer
(not judicial), has any lawful authority to
¦ order the seizure, or imprisonment, or re
moval from the State, of any citizen of the
State for any offence whatever committed,
or alleged to have been committed, within
its' borders. I need hardly add that the
arrest and imprisonment of any person not
charged with any crime, no matter by
whom, or by whose order the same is made,
is in violation of the Constitution and the
laws. The Constitution of the United
States declares that in criminal prosecutions
the accused shall have a speedy trial by jury
in the State or district where the crime
shall have been committed ; and the seizure
of any person, and his removal against his
will from his State or district, is in viola
tion of this provision of the Constitution,
and, in the eye of our statute, without
"lawful authority." There are constitu
tional and statutory provisions in relation
to fugitives from justice. When an
offence has been committed, or is alleged to
have' been committed, in another State, and
when the offender has fied into this State,
provision has been made by act of Con
gress, in conformity with and obedience to
constitutional requirements, for his arrest
and return to the State from which he has
escaped. In such cases the Governor ofthe
State in which the offence is alleged to have
been committed may make a requisition
upon the Governor of this State, accompa
nied by the necessary proofs; and upon
such requisition the Governor of this State
may issue his warrant for the arrest of the
fugitive, by virtue of . which he may be
seized and returned to the jurisdiction from

which he has fled. In this way, and in no
other, can he be lawfully seized and con
veyed out of the State. Any person,
whether he be an officer or not, who shall
seize and imprison an alleged fggitive from
justice (except to await a requisition) acts
without authority; and if he shall seize and
detain him against his will, with intent
secretiy to imprison him here, or remove
him out of the State against his will, except
upon such- requisition and warrant, he is
guilty of a violation of the statute I have
read to you, and is liable to indictment and
imprisonment-. Upon the trial of such in
dictment the fact that he acted by order of
tbe President, or any member of the Cab
inet, or other officer of the government,
will constitute no legal defence. These,
gentlemen, are plain propositions of law,
which cannot be disputed, applicable to our
loyal State, in which the State courts are
in almost' uninterrupted session, in which
judges and magistrates are faithful to their
oaths to support the Constitution of the
State and the Constitution of the United
States, in which the laws are ample for the
punishment of all offenders as well as for
the protection of all citizens — a State in
which the federal courts are in almost daily
session, with all their machinery in full
operation, their judges and marshals and
deputies ready to perform their duties,
whose process can always be enforced and
whose judgments and decrees can always
be executed — a State in which the acts of
Congress are never resisted, and whose
people venerate and respect the Cpnstitu-
tion and the laws. In such a State, sb cir
cumstanced, not being the scene of actual
military operations, not having even an
army within its borders, nor even any sol
diery, excepting such as may be on their
way to fight the batties of the Constitution
and the Union, whose laws are Rot ob
structed or defied ; where no form of the
"law martial" can, by any construction, be
made applicable to any person not mustered
into mihtary service, it is my duty, as a
Judge, to declare to you that the seizure
of her citizens, their secret imprisonment
against their will, their removal from be
yond her borders without authority of laW

l&o

RECORDER HOFFMAn's ' CHARGE.

to answer to criminal or other charges,their
confinement in places beyond the reach of
legal process, is in violation of the rights
secured: to them by the Constitution "and
by the laws, and it is the right and solemn
duty of the Grand Jury to indict any per
son or persons who have in these respects
offended against the taw. I have now, gen-
tiemen, discharged ray' duty, I leave yoii,
under the obligations of your solemn oath,
to the performance of yours. It may not
be possible to prevent entirely the arbitrary
and unlawful seizure and removal of the
citizens of our State, but it is possible to

convict and punish those who in this re
spect shall be found guilty of a violatidh of
our laws." ' ''
As soon as the Recorder had finished,
one pf the Grand Jurors asked this' ques
tion: — ' '
" Suppose a man is a traitor against the
general government, has not the federal
government the power to arrest the party ?"
Recorder — "They have not, except by
process of law. The federal courts are
open for the ari'est of traitors as well as
others."

101

MEMOEAND A.

Persons wishing to pursue the invest
igation of the questions discussed in the
foregoing pages may be aided by a reference
to the following authorities:
2 Kent's Com., marginal paging, 26-34.
Hallam's Const. Hist'y of England, chaps.
7, 8, 13.
Hurd on Habeas Corpus — passim and
particularly chaps. 4, 5, Book 1, chaps.
6, 7 Book 2.
Warden vs. Bailey, 4 Taunton's Rep., 67,
S. C. Maule, and S. 400.
Atty. Gen'l Bates' Opinion, 24 Boston
Law Rep. 129.
Merryman's Case, Ibid. 78.
The IJnited States vs. Booth, 21 Howard
506. Binney's Pamphlet Opinion, Phila.
Luther vs. Borden, 7 Howard's Rep. 1,
and cases cited.
Houston vs, Moore, 5 Wheaton 1 .
Opinions of Att'y Generals of United
States, vol. 6, pp. 92, 103, 713; vol 7, 123,
1 82; vol. 8, 365.
A Curious Case, in Documents relating
to Colonial History of New York, vol. 3,
pp. 665-684.
Commonwealth vs. Blodget, 12 Met
calf 's Rep., 56,
Greene vs. Briggs, 1 Curtis' C. C. Rep.,
311. Fleming os. Page, 9 Howard 603-615,
&c. Mitchell vs. Harmony, 15 Howard 115,
and cases cited.
Mostyn vs. Fabrigas, 1 Cowper, 161.
Blake's Case, 2 Maule & Selwyn, 428.
Exparte Sheever, 2 Burrow, 765.
Wilkeson r/s. .Leland, 2 Peters, 627.
Cross vs. Harrison, 16 Howard 165, and
Cases there cited.
Wilson vs, Mackenzie, 7 Hill's Rep., 95.
United States vs, Mackenzie, 1 N. Y,
Legal Observer, 371.
The Debates in the British Parliament on
proclamations of Martial Law in Ceylon

and Deraarara, in Hansard's Pariiamentary
Debates. Hansard's Parliamentary Debates,
vol. 1 1, riew series; and vol. 115, 3d series.
Debate in Congress, 1807, on Bill to sus
pend the Habeas Corpus, and on Broom's
Resolution, vol. 3, Benton's abridgement
of Debates, p. 500, &c., and Annals of
Congress, p. 403 — 502, &c.
Bowyer on Universal Public Law 424.
Halleck's International Law, pp. 370-
380. North American Review Oct., 1861,
vol. 93.
Martin vs. Mott, 12 Wheaton 19.
Wilson vs. Izard, 1 Paine 68.
Sutton vs. Johnstone, 1 Durnford and
East 549.
Opinions of Judge Treat, in the Case
of Emniett McDonald on Habeas Corpus,
U. S. Dist. Court, E. Dist. of Missouri,
May Term, 1861. *
A pamphlet Review of Mr. Binney's
pamphlet. Printed for the Author. Phil'a,
1862. People vs. McLeod, 1 Hill, 377, and 25
Wendell 483.
McLeod's Case, 26 Wendell, 663; 3 Hill,
635; 4 Boston Law Rep., 169; and 1 Am.
Law, Mag. 348.
Trial of Smith & Ogden.
Curran's Speech in Bevan vs. Sirr.
The works on Court Martial, by Hough ;
O'Brien, DeHart, Tytler, Adye, Simmons
Samuel, Benet, Macomb, and others.
Proceedings on proclamation of Martial
Law, by Lord Dunmore; vol, 4 of 4th series
of American Archives; 2 Jefferson's Life
and Correspondence, 274, 291, 344.
Matter of Carieton, 7 Cowen, 431. Titles
— Articles of War; Law Martial; Law
Military ; and War, in Scott's Military Dicty.
Sanborn's Case, 23 Boston Law Rep., 7.
Williamson vs. Lewis, 24 do., 102.
Elphinstone vs. Bedreechund, 1 Knapp's
Reports, 338.
United States vs, Wingall, 5 Hill, 16.

IP^:

IIEMORAJ^DA.

Matter of Stacy, 10 John Rep., 328.
People ?;«. Cassels, 5 Hill, 164.
Bennac vs. The People, 4' Barbour, 31.
Matter of Belt, 1 Parker Rep., 169.
Selections from Writings of Cobbbtt,
vol. 5, pp, 152, 154, 165.
American Ins. Co. vs. Canter, 4 Peters'
Rep., .511. '
Opinion of Hon. B. F. Hall, Chief Just
ice of Colorado, in McKies Case:- Pamph
let. Denver C. T., 1862.
Ex parte, John Nugent, Am. Law Jour
nal, 107. ,' ¦¦
Entick vs. Carrington, 19. Howell's State
Trials, 13,,37'., , ',
Ex parte. Burford, 3d CranCh, 448.

Bostock vs, Saunders, 3 Wilson's Rep.
4, 34.
Bruce vs. Rawlin, 3 Wilson's Bep„ 61.
Bell vs. Class, 8 Wendell, 263.
Leach vs. Mooney, et. al„ 19 Howell's
State Trials, 1026.
Watson vs. Blackman, Ibid 1001.
Wilkes vs.WooA, 19 Ibidem, 1166; '
Attorney Gen'l Hall's Opinion in the
case of Recorder Morris, furnished on the '
application of Gov. Sewkrd, and Dated
Jan. 11, 1841.
Minot's History of Mass., vol. 2, p. 91.
Debates bn bill to refund Gen. .Tackson's
fine, in 1842, 1843 and 1844, in Con-.
gressional Globe, and Appendix.

lOS

REMAEKS.

Since the foregoing notes were written,
a large number — indeed most — of the pris
oners arrested under the orders of the Sec
retary of War, have been discharged by
direction of the President or War Depart
ment. This action, and the late orders of
the War Department, indicating a speedy
abandonment of its system of arbitrary
arrests, will meet the hearty approval of the
friends of constitutional liberty. If any of
the' parties so discharged have really been
guilty of treason, or any other crime, they
should now be proceeded against in the
ordinary courts of justice. And, certainly,
if any of the parties who have ordered such
imprisonment, know that the parties so dis
charged have been guilty of amy treason
they should at once make known the facts
to the proper authorities, on pain of being
themselves guilty of misprision of treason.
An Act ef Congress provides, "that if
any :person or persons, having knowledge
of the commission of any of the treasons
aforesaid," (being the only treasons made
punishable by the ' laws of the United
States,)" shall conceal, and not as soon as
may be, disclose and make knOwn the same
to the President of the United States, or
some one of the judges thereof, or to the
President or Governor of a particular State,
or some one of the judges or justices there
of, such person or persons, on conviction,
shall be adjmdged guilty of misprision of
treason, and shall be imprisoned not ex
ceeding seven years, and fined not exceeding
one thousand dollars."
For the the prupose of showing that the
laws have provided for the proper punish
ment of treason, and of the minor offences
against the established and constitutional
government of the United States, it has
been thought not inappropriate to give tbe

following extracts from charges to Grand
Juries, by Judges Hall and Leavitt, and a
decision by Mr. Justice Swayne; and also
an extract from an act of Congress passed
at the first or special session of the present
Congress: — ' -. '
AN ACT
To define and punish certain conspiracies :
Be it enacted by the Senate and House
of Representatives of the United States of
America in Congress assembled, Th3t if
two or more persons within any State pr
Territory bf the United States ,(*) shall
conspire together to overtlirpw, or to put
down, or to destroy by force the govern
ment of United States, or to oppose by
force the authority of the Government of the
United States; or by force tp prevent, hin
der, or delay the execution of any law of
the United States ; (-f) or by force to sei^e,
lake or possess any property of the United
States against the will or contrary to the
authority of the United States; or by force,
or intinaidation or threat to . prevent any
person from accepting or holding any office,
or trust, or placee of confidence under the
United .States ; each and every person so
offending shall be guilty of a high crime,
and upon conviction thereof in any distr|ict
or cii'cuit cpurt of the United States, haying
jui'isdiction thereof, or district or supreme
court of any territory of the United States
having jurisdiction thereof, shall be punislied
by a firie riot less than five hun4red dpllars
and not more than five thousaiid dollars;
or by imprisonment, with or without hard
labor, as the court shair determine, for a
period not less than six moriths not- grea'ter
than six years, or by both such fine and
imprisonment. Approved, July 31, 1861.

* It is somewhat singular that the District of Colum
bia is not embraced ¦wit'hin the provisions of this Sta
tute.

(-f-) It is presumed, -without regard, to the, fact, t^iat it
is the laW'Tvhlch secures to the cWi^ix the privile'ge of
the AaAea«,cor^Ms,or some other law.' . '..,

10*

CHARGE TO GRAND JURY.

UNITED STATES DISTRICT COURT.
Present — N. K. Hall, Judge, i
KoOHESTER, Tuesday, May 21, 1861.
This Court organized this morning at 11
o'clock at the Supreme Court Room.
A grand jury was called and sworn — S.
W, D. Moore was made foreman.
Judge Hall charged the jury on the
usual subjects which come under their no
tice, and then passed lo the consideration of
the exciting, events of the day. On this he
addressed the jury as follows: ¦ ,
"Under ordinary circumstances, gentle
men, I should not detairiyou longer. But,
unhappily, , the present condition of our
country — the existence of a wide spread and
most formidable rebellion against the con-
stitituted authorities Of the Natiorial Gov-
ernmentr^— the hostile array of forces openly
raised, organized and armed, for the avowed
purpose of resisting the execution of the
laws of 'the' United Slates — the seizure, of
their forts, arms, arspnals, munitions and
vessels of war — the openly avowed traitorous
designs Of those who, inaddened^' by ambi
tion, deluded by falsehood, or moved by
groundless fears in regard to the .future
action of the government, have conspired
'together to subvert the authority-^in many
of the States — of the government of the
Uriiori, requh'c that I should call your at
tention to the highest crime known to our
laws — the highest ciime which cari affect
the rights and interests, the well-being and
safety of our people — the crime of treason-
against the United States. I'll doing this
I shall not, attempt to' present any briginal
or striking views, but shall studiously con
fine myself to the statement of so me general
principles which I believe to V>e clearly de-
duoi'ble from the experience Of the past and
the decisions of Courts of superior jurisdic
tion. The naturaliand inevitable coiisequences
ofthe crime, pf treason are most pernicious
and cakmitous. Its dii'ect and immediate
tendency is wbviously to abrogate the au
thority of law — to dissolve the bonds of
social and civil order — to subvert and de
stroy the ' foundations pf governmeut — to
give full scope to the unrestrained indul

gence of the worst of human passions— to
destroy all security of property, of person,
andof life;— in short, to involve a whole
people in fratricidal and bloody strife— in
anarchy and ruin.
We are not to discuss the causes or to
speculate upon the fearful consequences of
the existing rebellion. The fact of its ex
istence, and the provisions of, the Constitvi-
tion and laws which authorize the. punish
ment of those engaged in its prpsecutipn
must be- the basis of our action. , Leavjng
to .the Executive and J^egislative Depart
ments the conduct of all but the prescribed
judicial proceedings for its suppression, it
is pur duty to endeavor to execute fuJUy and
faithfully, as well as justly andimpartiaUy,
the laws of the land in respect to treason,
as we would execute them in respect to
every other crime or offence against the
laws of the United States, which may be
come the subject of our investigations.
The framers of our admirable- Constitu
tion, warned by the melancholy history of
the past, were careful to secureji tbe citizen
against the evils of constructive treason: — .
Knowing that in times of high political ex
citement, acts of a doubtful or subordinate
character might, by the operation of popu
lar prejudice in the jury box, or of arbitrary
constructions upon the bench, be declared
treason against the Government, they in
troduced the third section ofthe third arti
cle of the Constitution of theUnited States,
which provides that ^'Treason against the
United' States shall consist only in levying
war against them, or in adhering to their
enemies, giving them aid and comfort" aitd
further, that . "JVo person shall • be con
victed- of treason, unless on the testimony
of two witnesses to the same overt act^ or
on confession in open Court''
An act of Congress passed in accordarice
with this Constitutional provision, enacts
that "If any person owing allegiance to
the United States of America, shall levy
war against them, or shall adhere to their
enemies giving them aid and contort, with
in the United iStates or elsewhere, and shall
be thereof convicted on confession in open
Court or by the testimony of two witnesses
io the same overt act of the treason whereof

CHARGE TO GRAND JURY.

10^

he or they, shall stand indicted, such per-
son or pe:rso'rii shall be adjudged guilty of ^
Treason against ihe United States, and
shall suffer death."
These provisions must be your guide and
mine! in all prosecutions for treason; and
under these provisions of the Constitution
and laws you will observe that Treason
against the United States may consist,
1st — In levying war against the Unitedv
States; and— ^
2d^ — In adhering to the enemies of the
United Slates, and giving them aid and
comfort,! In reference to the first class of cases, it
is proper to say that io levy war, in the
sense of the term as used in the' constitu
tion; is to raise, or make or carry on w.<ir.
To attempt to subvert tbe just authority of
Government by the warlike array 'Of num
bers and the exercise of force, or to assem
ble in force and in a condition to make war,
with the intent to use such force for the
treasonable purpose of subverting the au
thority of government either wholly or in
any particular portion of the country, has,
therefore, been held to be levying of war
against the United States, and treason, —
Levying war is direct when the war is
made, or carried on, directly against the
government with the intent wholly to over
throw it or to subvert its authority in a
pafticulal locality^; such, for instance, as
seizing! or holding against the Government
any of its forts or ships of war, or attacking
the same, with a vieiv of destroying them
or of takitigand'holdinglthem in possession.
It is cdnstruqtive when it is made or carried
on, in pursuance of a previous conspiracy
pr agreement, for the purpose of attempting
to compel by force the repeal of a general
statute, or to prevent, in all cases, the exe
cution of such statute; or to obtain by in
timidation arid force the compelled assent
of the constituted authorities to the redress
of any other public grievance, real or pre-
tendied. '
LevyingOf war against theUnited State's
is not necessarily to be judged of alone by
the nu'rri,ber or array ' of troops or people;
or the number or quality of their weapons
or ineari's of offence; but there must be a

conspiracy to resist or sict by force, an4 aii
actual resistance or action by force of arms,
or by intimidation of numbers. If a body
of men conspire and meditate, an insurrec
tion to rpsist or .oppose the execution of any,
statute of the United: States whenever and
wherever it is attempted to be put in execu-^
tion, it is only a high misdemeanor ; but if
they proceed to carry such an intention intp
effect, by an array of numbers and the
exercise of force, they are then g'iiilty of
treason by levying war. To conspire to
levy war and actually to levy war, are
therefore two distinct offences. The first
must be brought into open action by the
assemblage of men for the piirpos^,' ti-ea-
spnable in itsislf, or tlie fact of ICvyiiig war
cannot have beeri coniiriitted. And the
conspiracy arid insurrection connected' with
it must be to effect something , of a public
nature to overthrow the Government, or to
nullify some law of the Uriited States by
preventing its execution or compelling its
repeal. If war be actually levied directiy against
the Government, that is, if a body of men
be actually assembled and arrayed for the
treasonable purpose of overthrowing the
Government of the! dOuntry by force of
arms, all those who are actually leagued in
the common conspiracy, arid who, in- pur
suance of the general design perfbi'iii' any
part, however minute, or however remote'
from the scene of abtion, are tp be consider-'
ed as traitors. But ip the cas4 of a' con
structive levying of war, tljdse oply of , the"
rioters who actually aid and assis't in doing
those acts of -violence vrhich constitute the
treasbn, are guilty as traitpi's.
In order to complete the bijrence' oi 'trea
son, it is necessary that in overt — that is aii''
open — act of treason should'be committed,
arid one or more of such overt acts shoiild
be set forth in each indictment fdr ' the
offence. And, as I. have before stated, the
Constitution requirfes thatj before couyictioni
the overt ' act',' alleged in the indictrnent,
shall be proved by the testimony of tw'o
witnesses, or by the cpiifessioii^pf ,the pfifen-
der in open court. It is unnecessary fornfO"
to remaili' ujibri' the prbpriety of this pro- -
vision. It is enotigh to say that it is found

10.6

CHARGE TO GRAND .TITRY.

in the Constitution and must not be disre
garded or evaded.
The other class of treasons-^that of '^ad
hering to the enemies of the United States,
giving them aid and comfort" is that in
respect' to which you, as Grand Jurors of
this, district, 'are most likely to be called
upon to deliberate.
It wpuld not be easy to enumerate thesev-
eral acts which, when done in furtherance of
the treasonable designs of the enemies of
the',IJnited States pr of those engaged in a
treasonable resistance of the, Government,
constitute treason. The ipodes in which
imppi'tant and efficient aid may be given,
either directly or indirectiy, to those engag
ed iri the prosecution of a rebellion, or by
which aid and comfort may be given to the
enemy, are so very numerous and sO entire
ly variant in their character, that I shall refer
to afewonly; — t)ut suchreference will indi
cate with sufficient clearness the general
character of the acts which have been
held to be treasonable. If citizens of the
Uriited States — or aliens permanently or
tempprarily residing here — join the public
enemy in acts of hostility against our gov
ermnent, pr deliver up its forts, ships pf
wa,r, arms or munitions of war, through
treachery,, or raise or enlist troops for the
enemy, or supply them with money, arms,
munitions or ships of war, or even provis
ions or intelligence, with the intent and
purppse that the, same shall be used to aid
and , strengthen a rebel force, or with the
knowledge that they are needed and are
actually procured for that purpose, they will
be guilty of adhering to the enemy and
giving them aid and comfort, which is trea
son' against the United States. It is no de
fence that the aid t^us alTprded to the
public enemy, or known rebel, is sold or
furnished for a conipensation. To sell to
rebels, or the public enemy, arms or intelli
gence, or other necessary means for prose
cuting the war, with the knowledge that
they, are purchased for use, and are inten-

ed to be used for that purpose, would be
giving aid and comfort to the rebels, or the
public enemy, and would, therefore, be
treasonable. (*)
The kindred but minor offence of mis
prision of treason may also become, the
subject of your investigations; but this
offence is so clearly and distinctiy de
fined by act of Congress that you can have
no difficulty in determining what facts must
be proved in order to justify the finding of
an indictment for that oflenee. This act of
Congress is in the foUowing words :
"If any person or persons, having knowl
edge of the commission of any of the
treasons aforesaid" (being any treason
against the United States mentioned in the
act of Congress in regard to treason, to
which I have referred), "shall conceal, and
shall not, as soon as may be, disclose and
make known the same to the President of
the United States, or some one of the Judges
thereof, or to the President or Governor of
a particular State, or some one of the
Judges or Justices thereof, such person or
persons, on conviction, shall be adjudged
guilty of misprision of treason, and shall be
imprisoned not exceeding seven years, and
fined not exceeding one thousand dollars."
None of the treasonable acts to which
your attention has been called, can be jus
tified or excused upon the ground that a
State has a right to secede from the United
States — or in other words to withdraw from
our Federal Union. This pretended right
of secession has no foundation in reason or
the Constitution, and it is distinctiy and
clearly repelled by the reasonings and au
thority of our judicial tribunals. Our Na
tional Government is founded upon a Na
tional Constitution, not upon a compact of
federation made by sovereign States.
The government established by that Con
stitution is one of full stature and just pro
portions — with the highest attributes of
sovereignty, and with ^1 the departments,
executive, legislative and judicial, necessary
to maintain and exercise its authority in

(*)' It will be seen (post p. IQfl) that Mr. Justice Swayne
hu.hQld that an indicttnentfor the acts here enumerated,
in aid of the rebel States, cannot be sustained, if founded
upon the Constitiltional and statutory provisions against
*'adheri-ng,to iht( enemies of the United Staies, and giving
them aid and comj^ort." But if ho is right in this, such

acts need not go unpunished, when war has been actually
and directly levied by rebels, if the parties oITending are
leagued in the common conspiracy and perfbrm thO
traitorous act in pursuance of the common design of the
insurgents, for they are thus guilty of levying war
against the Xluited States.

CHARGE TO GRAND JtlRT.

107

peace and war, to the extent of its delega
ted powers, — without resort to the author
ity or officers of the separate States ; — and
although in our peculiar American system
of government we have two governments,
each having jurisdiction with prescribed and
limited powers of legislation over the same
territory and operating upon the same per
sons — yet so carefully and wisely did the
framers of our National Constitution pro
vide against the dangers of collision be
tween the National and State governments,
or their officers, that it might well be sup
posed that a want of reason or a want of
patriotism on the one hand, or an insarie
ambition or criminal recklessness on the
other, could alone bring the two into hos
tile collision. But such a collision has now
occurred, and while every patriotic citizen
must deeply regret the disturbance of the
public peace, the injurious derangement of
the business and financial operations of the
country — and more than all the alienation,
estrangement and deadly hostility of tho.se
bound by a common allegiance, and who
have so long enjoyed in common the
manifold blessings of a constitution and
government under which the American
people have lived for nearly three-fourths
of a century, and enjoyed a -fullness of pros
perity and a degree of happiness never
before experienced by any people. And
while all must deeply deplore the existence
of a civil war of whoSe evils and horrors
we can as yet have no adequate compre
hension, and whose end and consequences
no man can foresee, our path of duty is
plain and clear. And it is precisely what
it has been in the past; — alike in seasons of
the highest excitement and the, serenest
tranquility. We are simply to obey and
enforce the law, regardless of political or
personal prejudice or private predilections ;
and to sustain in public and private to the
best of our ability, the constitutional author
ity of those to whom the American peo
ple, under the forms and in the spirit of
the Constitution, have committed the' ad-
miriistration of public affairs. In this way
only can we secure the blessings of a free
and stable government. In this way" only
can we maintain the Constitution framed

by the wisdom of Wa.shington and his com
patriots, and wisely adapted to its declared
purposes of forming a more perfect union,
establishing jnstice, ensuring domestic tran
quility, providing for the cpmmon defence,
promoting the general welfare and securing
the blessings of liberty to the people of the
United States and their posterity.
I will add that our jurisdiction in respect
to all crimes is limited to offences commit
ted within this judicial district, and offences
committed without the territory of the
United States, when the offender is after
wards first brought or arrested in this dis
trict ; and that you should carefully confine
your investigations to cases within the juris
diction of this court.
The consideration of our duty to sustain
the constituted authorities, has determined
me to venture to depart for pnce from the
strict line of official duty to which I have
heretofore confined myself upon similar
occasions, and to express the opinion that,
at all times, and especially at times, like the
present, our people are tpp prone to hasty
and uncharitable judgments, in respect to
the acts of those in authority. The Pres
ident and his Cabinet, and the high mili
tary officers to whom belong the direction
of our affairs, are generally able to procure
full and accurate informatipn in regard to
pa's.sing events, while the people and the
press are misled and mystified by idle
rumors or false or conflicting reports,^—
Under such circumstances, I invoke for
those in authority not simply your charita
ble judgments, but your patriotic confidence.
Trust in the President and his advisers, and
give to the first soldier of the age — ^the
gallant and ever tp be honored veteran who
commands our armies, (*) an undpubting
confidence ; and regardless of the impsitient
clamors and provoking taunts of a partisan
press, rest satisfied tliat he will act wisely
and efficiently in due time; and that, in
military affairs, to attempt offensive opera
tions with undue preparation, is the ye^y
worst pohcy — fraught with the most disas
trous consequences. , ,,
In advisirig that a generous confidence,
rather than censoriousness and distrust.

(*) General Saott.

.?.98

JUDGE LEjAVITT's QHABGE TO GRAND JURT.

shall influence pur judgment of public men
and puolic npeasures, I ani sure 1 do not
act the partisan or the politician.' I should
give you the same advice under all ordi
nary circumstances, without, regard tptjtie
party or persons in ppvfpr.but I give it not,
the less willingly on this occasion because I
am able to say that after considerable ,ac-
quaintanc'e with the President, diiring our
service as members of, the same Congress,
1 have entire confidence in his integrity and
patriotism.

[From the^Cincinnati Enquirer.]
At the April Term of the United Spates
Circuit Court of 1881, Judge Le.wtt, in
his charge to the Grand Jury, said : —
"I will no-^ briefly call th^ attention of
the Grand Jui-y to the second part of the
definition of treason, included in the words,
adhering to the e'herAies ofthe United States,
giiiing them' aiif and comfort. The statute
gives 'no .specification of the acts which con
stitute treason under this part of the defii
nition of that crime. Npr can we avail
'ourselves of the aid of judicial authorities,
tb'jiny extent,' in' the investigation of this
subject. I am not ,awai'e that in any of the
prosecutioris for treas'in in this country, the
words under consideration have reeeived an
autltoritative construction. The words ' ad
hering "to their enemies, giving them aid
and c'omforf,' leave no rooir^ to doubt that
tre&son friay.be' coriirnitfed.by other means
than levying war."
"The Court then proceeds to state that
the utterance of disloyal sentiments is not
ti-eason, but^ iri ' specifying the nurnerous
acts fairiy yithin' the scope ofthe words
"^vjn^ aid and comfort to the enemy,"
the Court continues:'
"To furnish arms or munitions of war,
or to provide boats, yeissels, railroad cars, or
other means of transp'ortatiori for those ar;
rayed in hostiie opposition to the Goyern-
irient;'with a knowledge of the purpose for
whicji they arp to be 'psed, are unquestion
ably acts involving the 'crime of treason.
So, too, inciting, encouraging, or aiding
others to engage in any of these treason
able' acts, if the treasonable motive appears.

would ]3e giving ,aid and comfpi;t „te,.the
enemy within thp meaning , of thp, Iftw.^i*!*
"The purchase of ppvisipns, stores and
necessaries for a relsel 'or foreign ai'iCny^ en
gaged in war -yithtiie Nationp,! Clpyprn-
ment, by a commissary of purchases, is au
act 'of levying war, incurring the guilt of
treason. If the seller knows that the pro
perty is to be used fo,i', the ai-ipy in a State
or place in the possession of the enemy, lie
thereby does .give aid and comfort to the
enemy, and is within the -penalty of the
law." • '"' .\ ' ¦' " " ,,
At the October Term .Judge Leavitt re
affirmed, what had been stated M the April
,tpi-pi, and, directed the Grand Jury -to
the charge given ,,at that time, and , on
the langjjage " adhering to treason," &c.
the Court said : " This language leaves no
room to doubt, that treason may be predi
cated pfacts, which are not a direct levying
of war eccoi'ding to the construction of that
phrase.", *' ' * * ^ *,, *
'•To sejll to, or provide arms or muni-
tions'of war, oi- iiiiliiary storps or supplies,
including food, clothing, &c^ for the use of
the enemy, is within the penalty of the
statute in showing an adherence to the ene-
m}', and an unlawful purpose of giving him
,aid and comfort."
Uppn tlie charge pf the Court at the
April Term, James W. Chenoweth was in
dicted for , treason by the Grand Jury, in
gi,yipg aid comfort to the enemy, &c., and
upon i,he same grounds indictments were
found against Thomas B. Lincoln and, Jno.
A. Skiff, charged wit'p similar offences. At
the present term of the Circuit Court, Jus
tice Swayne and Judge Leavitt on thp
Bench, a motion was made by Hon. Gep.
E. Pugh, in an able argument, to quasb
the, indictment, upon the ground that the
first clause of section 3, of the Constitution,
whiph provides that "Treaspn against. the
United Stiftes shall consist only in .levying
war against, them," rpfers to rebellion, while
the second c!?iuse, "or in adhering ,10 their
enemies, in giving aid and comfprt." . relates
to a public war with a Ipreign enemy. The
learned counsel cited numerous authorities
in support of fcis proposition. The Court
took tha .mption under .advisement, %n4

MK. JUSTICE SWAYNE'S , OPINION.

109

yestei'day morning Justice Swayne (*) de
livered,, the foUpwing complete and very;
able opinion :
CIRCUIT COURT OF THK UNITEU STATES, SOUTH
ERN DISTRICT OF OHIO.
Ihe United States vs. James W. Chenow
eth, — Indictment for Treason^- Motion
to quash the indictment.
SwATNE, Justice. — The indictment con
tains two counts. As they are identical, as
regards the question now to be decided, the
first count only will be particularly ad
verted to.
,, That count charges, substantially, that
there is in progress an insurrection and war
against the Government ofthe United States,
by persons styling themselves "the Confed
erate States of America;" that the defend
ant residing within and owing allegiance to
theUnited States, well knowing the prem
ises, but not regarding the duty of his al
legiance, and conspiring, and intending to
aidi and assist the persons styling themselves
as aforesaid, during said insurrection and
war, to wit: On the 20th day of June, 1861,
and on divers other days, before and after
that day, at the city of Cincinnati, in the
Southern District of Ohio, did traitorously
adhere to the persons styling themselves as
aforesaid — then and yet being enemies of
the United States; and that in the prosecu
tion of his traitorous adhering aforesaid, he
did procure certain supplies and munitions
of war, to wit: Twenty Colt's navy reyolying
pistols, ten five-inch revolving pLstols, and
thirtv pistols, of one Samuel Dreyfoos, and
frorii divers other persoh's unknpwn, with in
tent traitorously to deliver to thp persons
|tyling themselves as aforesaid, said supplies
and munitions of war; arid that, in further
prosecution of his traitorous adhering afore
said, deliver to the said persons styling
themselves ss aforesaid, the said supplies
and munitions of war, for the aid, comfort
and use of said persons in tbe prosecution
of their said insurrection and war against
the United States."
The Constitution of the United States,
Article 3, Section 3, provides that "Treason
(*) Judge Swayne is a very able and upright Judge
and was appointed a Justice of the Supreme Court ofthe
- United States, by President Lincoln.

against the United States shall consist only
in levying war against thpm, or in adhei'ing
to their enemies, giving them aid and com
fort." The Act of Congress of April 30, 1790,
Section 1, is as follows:
"If any person pr persons owing allegi-
auco to the United States of America, shall
levy war against them, or shall adhere to
their enejnies, giving to them aid and com
fort, within tiie United States or elsewhere,
and shall be thei'eof convicted," &c., they
"shall i uffer death."
This indictment is fiaiped under the
second provision of this section of the stat
ute. That provision relates exclusively to
adhering to the enemies of the United States,
and giving them aid and comfort. The
prior provision relates to levying war against
the United State.*. It has no connection
with the question involved in this motion,
and need not be further adverted to.
The second provision is a literal transla
tion — mutatis mutandis — from the Nor
man-French, of the provision upon the same
suhject in tbe English statute, of the 25th
Edward the Third : ["On soit adherent as
eriemies nostre, signiour le roy, a rux a eux
donant aid et comfort en sou roialme et
alors."] In support of the motion to qua.sb, it is
claimed that the provision in the English
statute, corresponding to the provision in
our statute, upon which this indictment is
founded, has.^alw^ys been held by the Eng
lish courts to 'kpply only to those who ad
here and give ^id and comfort to foreign
eneinies, SfnA., that it has no appljcjatipn to
those who coinipit the like acts, in, respect
of domestic traitprs, engaged in iqsiurrcction
pr rpbellion against their own government.
The following authorities are- rplie4 upon
in support of this proposition:, 3 Coke's
Inst., 11 ; 1 Hale's P. C, ^69; Foster's C.
L., ch. 238, sec. 12; 2 Chitty, Cr. L., ,62;
4 Bl. Cora., 62; 6 Dane's Ab., 697.
We have carefully examined these au
thorities. They sustain fully the proposition
they have been cited to support.
It is further claimed by the counsel for
the defendant that this provision of the
Enghsh statute having been thus adopted.

no

EXPLANATrOTtT NOTE.

it must be held that the 'construction given
to it by the English Courts prior to its
adoption, was adopted with it.
The principle which underiies this prop
osition IS so well settled as hardly to require
the support of argument or authority.
In Hillhouse vs. Chester, 3 Day, 211,
the Court say :
"It is a sound rule that whenever our
Legislature use a term without defining it
— which is well known in the English law
— and there has a definite, appropriate
meaning attached to it, they must be sup
posed to use it in the sense in which it is
understood in the English law."
This is in accordance with all the au
thorities on the subject.
The authorities which establish the con
struction contended for by the defendant's
counsel, also lay down the proposition that
the same facts which make a case within
the stamte of adhering and giving aid and
ao'mhrt to foriegn enemies, when done in
respect of insurgents and rebels, make the
offender guilty of the crime of levying war
against the government, and liable to be
punished under the other provision of the
statute for that offence. (3 Bl. Cer., 62)

The question presented by this motion
permits of no doubt as to its proper solu
tion. We sit here to administer the law, not to
make it.
With the excitements of the hour, we, as
Judges, have nothing to do. They cannot
change the law nor affect our duty. Cause
less and wicked as is this rebellion, and
fearful as has been its cost already in blood
and treasure, it is not the less our duty to
hold the scales of justice, in all cases, with
a firm and steady hand.
The motion must le sustained. The in
dictment will be quashed."
Flamen Ball, Esq., District Attorney for
theUnited States; Pugh and Mitchellfor
the defendant.
This decison dismisses the case of Chen
oweth, virtually disposes of the cases of
Skiff and Lincoln, in whose cases nolle
prosequies will be entered by the District
Attorney, Mr. Ball. This decision, being
the first of the kind delivered, will dispose
of a large number of similar cases pending
in the various courts throughout the United
States.

E3s:i'Xj-A.nsr.^TOK,^5r itote.

The preceding notes were mostly pre
pared in October and November last, and
soon after placed in the hands of the Prin
ter. Some additional matter and further
quotations and references have since beeri
added, and have not, pei'hap.s, been inserted
in their appropriate places.

It will be readily discovered that many
unimportant errors have escaped the cor
rection of the proof reader; but it is hoped
that none of them are calculated to mislead
even an unprofessional reader.