514 



HABEAS CORPUS. 



partment, dated August 8, suspending the writ 

 of habeas corpus in such cases. The judge 

 stated that " whether the* President has the 

 right to suspend the writ of habeas corpus with- 

 out appealing to Congress was a controverted 

 question. In his opinion the President has that 

 power in cases of important military exigency ; 

 but be that as it may, that the Secretary of War 

 and his subordinates have no power to suspend 

 the writ ; that the return of the marshal is not 

 a compliance with the writ, and that unless 

 within four hours the prisoner be produced in 

 compliance with the order of court, he should 

 issue a further order requiring the United 

 States marshal and sheriff to show cause at the 

 next term of the circuit court, on the 3d of 

 October next, why an attachment should not 

 issue against them for contempt of court." 



The final decision of the court in this case 

 was reported in substance as follows : 



That the orders of the War Department under which 

 the men against whom treason was alleged were ar- 

 rested were in violation of the provisions of the Con- 

 stitution of the United States, and were therefore il- 

 legal and void. 



That if, under the provisions of the Constitution, 

 the President of the United States had the power to 

 suspend the writ of habeas corpus, he could not dele- 

 gate that power to his subordinate officers. 



That the Constitution made the President cpm- 

 mander-in-chief of the military forces of the United 

 States, and that this, with the provisions of the laws 

 of 1795, which had been declared to be constitutional, 

 conferred upon the President power to declare mar- 

 tial law, and martial law having been declared by 

 the President's proclamation of the 24th of Septem- 

 ber, ipso facto the writ of habeas corpus was now sus- 

 pended. 



Therefore, if the said Field was now produced before 

 the court, he could not be discharged, out would have 

 to be remanded to the custody of the marshal. 



On the 1st of September, however, when these pro- 

 ceeding were instituted against the marshal, the writ 

 of habeas corpus was not lawfully suspended, and it 

 was no justification to him that he acted under the or- 

 ders of the War Department, those orders having been 

 issued without the authority of law. 



Marshal Baldwin was accordingly declared guilty 

 of contempt of court, and fined one hundred dollars, 

 which fine he paid. 



In the State of New Hampshire, Nathaniel 

 Batchelder, having been arrested on charges of 

 disloyal speeches and practices by some of his 

 fellow citizens, and imprisoned in Fort Consti- 

 tution, on the 8th of September he applied to 

 Chief Justice Bell, of the Supreme Court of the 

 State, for the writ of habeas corpus. It was 

 promptly granted, and served on the United 

 States marshal, Mr. Ela. On the 19th Mr. 

 Ela appeared before the court with counsel, 

 Mr. Daniel Clark of the U. S. Senate, to make a 

 return of the writ, and produced the following 

 letter : 



JUDGE ADVOCATE GENERAL'S OFFICE, Sept. 13, 1S62. 

 Hon. JACOB H. ELA, U. S. Marshal, Eochester, N. H. 



SIR : Your telegram to the Secretary of War, under 

 date of the 10th instant, relative to the writ of habeas 

 corpus issued in the case of Nathaniel Batchelder, ar- 

 rested for disloyal practices, has been referred to this 

 office for reply. 



The Secretary of War directs me to inform you that, 

 by an order issued under the authority of the Presi- 



dent of the United States, a printed copy of which is 

 enclosed, the writ of habeas corpus has been suspended 

 in all cases of arrests for " disloyal practices," to 

 which class of offences that of Nathaniel Batchelder 

 manifestly belongs. The Secretary instructs me to say 

 that to the writ of habeas corpus issued by Chief Justice 

 Bell you should return these facts as your warrant for 

 holding the prisoner in custody. Should any attempt 

 be made, after the return, to release the prisoner by 

 the civil authority, which is not anticipated, the Sec- 

 retary directs that you appeal for support and protec- 

 tion, in the discharge of your duties, to the military 

 force of the United States in your vicinity. 

 Very respectfully, your obedient servant, 



J. HOLT, Judge Advocate General. 



After an argument by counsel, the chief 

 justice stated that it seemed to him to be in- 

 expedient and useless to the prisoner to issue 

 an order for an attachment which could not be 

 enforced ; that the Government of the United 

 States had plainly expressed their determina- 

 tion to resist by force any attempt of the civil 

 authority to deliver the prisoner, and that he 

 received this not as a threat, but as the an- 

 nouncement of a settled resolution, which, with 

 the vast armies under their control, they had 

 the ability to execute against any power which 

 the State could command for the enforcement 

 of the law. He, therefore, declined to take fur- 

 ther action in the case. 



In Wisconsin a case occurred in which one 

 Nicholas Kemp was arrested, and a writ of ha- 

 beas corpus was granted, to which a return 

 similar to those in the preceding cases was 

 made. Issue was taken on the sufficiency of 

 the return, and Chief Justice Dixon gave the 

 unanimous opinion of the Supreme Court of 

 the State, as follows : 



This case pertains to the power of the President 

 under the constitution and laws of the United States 

 in time of civil war to suspend the writ of habeas cor- 

 pus, declare martial law, and to arrest and cause to be 

 punished by the sentence of a court martial or military 

 commission, citizens charged with offences against the 

 laws and regulations of war. It goes one step further : 

 it involves the power of the President to declare and 

 punish as offences those acts which are not made such 

 |jy acts of Congress. These are emphatically questions 

 of Federal cognizance, and which must, in the last re- 

 sort, be determined by the Supreme Court of the 

 United States, and I repeat my regret that it has be- 

 come my duty to decide upon them at all. 



I have, however, this encouragement, that for my 

 errors there is a remedy, which though slow and some- 

 times embarrassed by State opposition, is nevertheless 

 such as Congress has seen fit to provide. And this 

 consideration, that our decision is preliminary and not 

 final that we merely prepare the way for the deter- 

 mination of the court which can alone settle the law, 

 will relieve me from that extended discussion of the 

 questions which their gravity and importance would 

 otherwise seem to demand. The only motives to such 

 a discussion are to show that I have not passed lightly 

 over the grounds of my opinion that I have not as- 

 sumed to deny the legality of the acts of the President 

 without a careful and deliberate examination of the 

 whole subject, and these I must suffer to rest upon the 

 assertion that I have given the questions the fullest 

 consideration that my time and limited opportunities 

 would permit. I am also led to this course because I 

 cannot regard the principles involved as either new or 

 doubtful. 



They are, in my judgment, settled, so far as any 

 matters of judicial inquiry can be said to be settled 

 before a court not authorized finally to determine the 



