HABEAS CORPUS. 



515 



law for itself, by the uniform decisions of the courts 

 and the concurrent opinions of eminent jurists and 

 statesmen. I say matters of judicial inquiry, because 

 I observe that a distinction has been attempted by the 

 present learned Attorney General of the United States 

 between judicial questions and political questions. I 

 question the soundness of that distinction, and without 

 particular criticism, feel myself obliged, for the present 

 and until it has received the sanction of the Federal 

 Supreme Court, to disregard it. I am acting in judicial 

 capacity and must be governed by the established rules 

 . and maxims of the courts. 



I may furthermore add that the principles involved 

 have recently been the subjects of most profound and 

 elaborate argument by several most able lawyers and 

 judges. I refer to the opinion of Chief Justice Taney, 

 in exparte John Merry man, 9th American Law Regis- 

 ter, 524 ; the article entitled " Habeas Corpus and 

 Martial Law," " North American Review," Oct., 1861, 

 pp. 471 to 519, supposed to be from the distinguished 

 pen of Professor Parker of Cambridge ; the argument 

 of Judge Curtis of Boston, entitled " Executive Power," 

 pamphlet, Boston, Little, Brown & Co., 1862 ; and the 

 opinion of Judge Hall, of the Northern District of New 

 York, in the matter of Judson D. Benedict. I might 

 under any circumstances, without repeating the argu- 

 ments, content myself with a reference to these as a 

 complete vindication of the conclusions at which I have 

 arrived, and which I will proceed to state in as few 

 words as possible. 



And, first, I think the President has no power, in the 

 sense of the ninth section of the first article of the Con- 

 stitution of the United States, to suspend the privilege 

 of the writ of habeas corpus. It is, m my judgment, a 

 legislative and not an executive act, and the power is 

 vested in Congress. Upon this question, it seems to 

 me that the reasoning of Chief Justice Taney in ex. 

 parfe Merryman is unanswerable ; and in saving this, 

 I accept as just the strictures of Professor Parker, in 

 the article referred to, upon the decision there made. 

 I agree that there is a plain distinction between the 

 suspension of the writ in the sense of the clause of the 

 constitution and the right of a military commander to 

 refuse obedience when justified by the exigencies of 

 war, or the ipso facto suspension, which takes place 

 wherever martial law actually exists, which the Chief 

 Justice seems to have overlooked. 



But this kind of suspension, which comes with war 

 and exists without proclamation or other act, is limited 

 by the necessities of war. It applies only to cases 

 where the demands upon the officers time and services 

 are such that he cannot, consistently with his superior 

 military duty, yield obedience to the mandates of the 

 civil authorities, and to cases arising within distriets 

 which are properly subjected to martial law. In case_s 

 of the latter description, it is probable that the civil 

 magistrates would be bound to take judicial notice of 

 the existence of martial law by which their functions 

 are so far suspended ; but as to the former, it would 

 seem that the military officer should, if practicable, 

 make return of the facts showing his excuse. The re- 

 spondent in this case has made no such return, and 

 this brings me to the next question. 



Does martial law prevail at the present time in the 

 State of Wisconsin ? In using these words I adopt the 

 distinction taken by Judge Curtis between military 

 law and martial law ; applying the former to those 

 rules enacted by the legislative power for the govern- 

 ment and regulation of the army and navy, and the 

 militia when called into the actual service of the Unit- 

 ed States, and the latter to that government and con- 

 trol which military commanders may lawfully exercise 

 over the persons a_nd property of citizens and individ- 

 uals not engaged in the land or naval service. Upon 

 this question I entertain as little doubt as upon the 

 other. I think it does not. 



The powers of the President as Commander-in-Chief 

 of the army and navy in time of war are strictly con- 

 stitutional powers, so denominated by John Quincy 

 Adams, who, I believe, has tak%n as broad ground in 

 favor of the powers of war as any American statesman 



or jurist. They are derived from the Constitution in 

 the authority given to Congress to carry on war, and 

 though not denned by that instrument, they are limited 

 by the laws and usages of nations adopted in their full 

 extent by the common law of England (4 Bl. Com. *;7j 

 and of this country. Of those laws and usages there 

 is no principle better settled in modern times, as re- 

 spects free or constitutional governments, than that 

 martial law is restricted to those places which are the 

 theatre of war and to their immediate vicinity. Modi- 

 fied by the necessities of war it is obvious it cannot 

 operate beyond these bounds. 



The precise limits of the jurisdiction of the military 

 commander in cases arising near the scene of the strife 

 may be a question for discussion, to be determined ac- 

 cording to circumstances ; but over remote districts 

 and those not immediately connected with the opera- 

 tions of the contending armies, all courts and writers 

 concur in saying that martial law cannot be extended. 

 The true test in case of civil war would seem to me to 

 be whether the civil authorities are able by the ordi- 

 nary legal process, to preserve order, punish offenders, 

 and compel obedience to the laws. If they are, then 

 the military commander has no jurisdiction. If, on the 

 other hand, through the disloyalty of the civil magis- 

 trates or the insurrectionary spirit of the people, the 

 laws cannot be enforced and order maintained, then 

 martial law takes the place of civil law whenever there 

 is sufficient military force to execute it. 



The resistance in which the petitioner was implicat- 

 ed was riotous but not insurrectionary. Saving the 

 definition of martial law, which I think too broad, pre- 

 ferring that given by Professor Parker on page 501, I 

 commend the views of Judge Curtis upon this ques- 

 tion, not only for their general force and accuracy, but 

 for the spirit of candor and sympathy for the national 

 executive in these times of our trouble, and of patriotic 

 devotion to country evinced by the learned author, 

 which should characterize the criticism of all loyal 

 citizens. 



The power of the President to prescribe offences, or 

 to make rules for the conduct of citizens in districts 

 not subject to martial law, and to enforce them by fines 

 or imprisonment, by whatever form of trial, I think 

 not a question of discussion. This power, whenever 

 possessed by the Federal Government, resides in Con- 

 gress. Whether under the fifth article of the amend- 

 ments to the Constitution. Congress declaring the 

 offence, might have vested the jurisdiction in a court 

 martial or military commission, in the case of the 

 present petitioner, I need not inquire. Nothing of 

 that kind has been done, and he seems not to be charg- 

 ed with any offence known to the laws of Congress. 



These I believe to be the real questions presented, 

 and in stating my convictions of the law I desire to 

 add that they are given without the slightest disrespect 

 to the President, who has, in all his actions, been gov- 

 erned by the highest motives of patriotism, public 

 honor, and fidelity to the Constitution and laws. Pen- 

 ned at the gloomiest period of our public misfortunes 

 when over fifty thousand of the noblest of the land, 

 answering the summons, had fallen a sacrifice to the 

 sacred cause of our nationality when one division of 

 the army of the Union, already most sadly repulsed, 

 was threatened with complete overthrow by superior, 

 almost irresistible numbers, and another, broken and 

 wavering, was retiring before the resistless and impla- 

 cable foe when the only way to national life, honor, 

 and peace, lay through the fire and blood of battle 

 and when, in response to a recent call for additional 

 forces, instead of the utmost loyalty and patriotism on 

 the part of every citizen of the loyal States, each ask- 

 ing where he could be most useful or how he could best 

 promote the welfare and safety of his country, there 

 was reason to apprehend, in some quarters, factious 

 and disloyal opposition the proclamation in question 

 is not a welcome subject of criticism. 



As not unfrequently happens in the affairs of war, 

 it is easier, sometimes most painfully so, with time for 

 deliberation, to point out mistakes after they are com- 

 mitted, than to see and avoid them amid the difficul- 



