HABEAS CORPUS. 



513 



design of the order was stated to bo the arrest 

 of deserters. (See, for the order, ARMY OF TIIE 

 UNITED STATES.) 



The action of the civil courts during this 

 state of affairs is illustrated by a few examples. 



On the 18th of September, Isaac C. Thomas, 

 a citizen of Bucks county, Penn., was arrested 

 on a charge of discouraging enlistments. On the 

 20th John H. Cook, of Philadelphia, was ar- 

 rested by authority of the following order, 

 which is" an example of those used in these 

 cases: 



WAR DEPARTMENT. WASHINGTON CITY, I 



Sept. 19, 1S62. f 



To BENJ. FRANKLIN, Esq., Chief of Police, Philadelphia: 



Tours of the 17th instant and enclosed is received. 

 You are hereby authorized to arrest John Cook upon 

 the charge specified in the affidavits you sent. You 

 will imprison him at the usual place of keeping in 

 custody persons arrested for political offences, and 

 report. 



By order of the Secretary of War, 



D. C. TURX'ER, Judge Advocate. 



In the case of Thomas an application was 

 made to Judge Cadwalader, of the United 

 States District Court for the State of Pennsyl- 

 vania, who on the 24th issued a writ of habeas 

 corpus^ returnable on the 26th. Similar action 

 took place in the case of Cook, and both the 

 parties accused were admitted to bail. The 

 report of the proceedings of the court is as 

 follows : 



At the hearing, Mr. Knox, who, with Messrs. Coffee 

 and Ashton, represented the marshal, filed a petition 

 with a motion to quash the writ, citing the President's 

 proclamation suspending the writ of habeas corpus. 

 Mr. Knox contended that, under this proclamation, the 

 judge could not interfere with the arrest. 



Judge Cadwalader desired to hear an argument on 

 the following points : 



First. Whether a person who is not in the military 

 service of the Government, and is not in a place where 

 hostilities are actually pending or threatened, and is 

 not at a place in military occupation, is liable to mili- 

 tary arrest in a district in which the courts of ordinary 

 civil and criminal jurisdiction are open for the regular 

 administration of justice. . 



Second. Whether the third section of the act of 6th 

 August, 1S61, legalizing and making valid all the acts, 

 proclamations, and orders of the President after 4th 

 March, 1S61, applies to his acts, proclamations, and 

 orders of a similar character made after the enactment 

 of that law; and if not, whether any other act of Con- 

 gress has_ expressly or impliedly authorized the -proc- 

 lamation iu question. 



Third. Whether the President has the authority 

 without or independent of any statutory authori- 

 zation. 



Mr. Knox contended that the burden of showing 

 that the act of the President was not authorized, was 

 with the other side. It was not incumbent upon him to 

 show that the President had authority, as the judge 

 must presume, until the contrary, that the act was 

 lawful. He further contended that, if there was to be 

 any postponement of the case, the accused should be 

 remanded to the custody of the marshal. 



Mr. Brewster, who, with Mr. Brooke, represented 

 Mr. Thomas, stated that his client was amongst the 

 most loyal ot the citizens. He desired time to pre- 

 pare an argument on the questions presented by the 

 court. 



Judge Cadwalader fixed Monday at noon for the 

 hearing, and admitted the accused to bail to appear at 

 that time. 



VOL. II.-S3 



On Monday, at the hour appointed, the cases 

 of Isaac C. Thomas and John II. Cook, charged 

 with disloyal practices, were called up, when 

 the following proceedings took place : 



Mr.-Knox, representing the United States marshal, 

 asked and obtained leave, in the case of Mr. Thomas, 

 to withdraw the application, made a few days ago, to 

 quash the writ of habeas corpus. He then presented 

 the following return : 



" To the Hon. John Cadwalader, Judge of the Dis- 

 trict Court of the United States for the Eastern 

 District of Pennsylvania : 



"Wm. Millward, the defendant in the within writ 

 mentioned, for return thereto, respectfully states to 

 your Honor that the said Isaac C. Thomas was arrest- 

 ed by him before the issuing of his writ, in pursuance 

 of an order to that effect made by the Secretary of 

 War, through L. C. Turner, Judge Advocate ; and that 

 immediately upon the issuing and service of this writ, 

 the said Isaac C. Thomas was removed from the cus- 

 tody of the defendant by the order of your Honor, he 

 having entered into recognizance, with sureties, for his 

 appearance, and to abide the order of the Court in his 

 behalf; and that he is not now, nor has he been since 

 the time aforesaid, in the custody of the defendant ; 

 and the defendant further states that he has recently 

 received directions from the War Department to dis- 

 charge the said Isaac C. Thomas from the arrest afore- 

 said, and that he does not claim the custodv of the re- 

 lator. WM. MILLWARD. 



" PHILADELPHIA, Sept. 80, 1862." 



Mr. Knox also presented a return in a similar form 

 in the case of Mr. Cook. He then said : In presenting 

 these returns I desire to say that I knew nothing of 

 these arrests until some time after they were made, 

 and after the writs of habeas corpus had been issued 

 by your Honor. Upon inquiry I learn that affidavits 

 had' been made making certain charges against these 

 parties. 



The Judge : Is it regular that, after these returns, I 

 should hear any argument ? 



Mr. Knox : I do not propose to present an argument 

 at all, but simply to make a statement. Affidavits 

 had been made making charges against these parties. 

 Those affidavits were forwarded to the War Depart- 

 ment. That department, through the Judge Advocate 

 at Washington, issued its orders for their arrest, one 

 of the orders being directed to the chief of police of 

 this city, the other to the marshal of the district. 

 Upon receiving further information the proper author- 

 ities are satisfied that the public interests do not re- 

 quire that these persons should be further restrained 

 of their liberty. Accordingly, the defendants have been 

 instructed not to claim the further custody of the rela- 

 tors, without, however, conceding in any wise that, 

 where a person is properly under military arrest, that 

 arrest can be interfered with through the intervention 

 of a writ of habeas corpus. 



Mr. G. M. Wharton : We make no concession that 

 there is any other " proper authority " than the judge 

 of this court. 



The Judge : These proceedings are ended by the re- 

 turns. I regret that any subsequent remarks have been 

 thought necessary. I have only to say to the respec- 

 tive petitioners that they are at liberty to depart and 

 go whither they please. 



About the same time a case occurred before 

 the United States Court for the district in- 

 cluding Vermont. Three persons had been 

 arrested in Jericho, in that State, charged with 

 disloyal practices, and imprisoned. A writ of 

 habeas corpus was issued by Judge Smalley in 

 behalf of one of these men. On the return day 

 the marshal appeared before the court without 

 the prisoner, and made return that the prisoner 

 was detained under an order of the War De- 



