HABEAS COKPUS. 



415 



review before the Supreme Court of the Dis- 

 trict on a motion for a new trial. The defend- 

 ant was charged with false imprisonment, in 

 having placed in custody Dr. StewartGwynne; 

 he pleaded in justification of the act, the orders 

 of the Secretary of the Treasury, and relied on 

 the act of March 3, 1863, chapter 81, providing 

 that any order of the President or under his 

 authority, made during the rebellion, should be 

 a defence to any action for arrest, imprisonment, 

 'etc., done by virtue of such order. Judge Wy- 

 lie, who tried the case, instructed the jury that 

 the order of the Secretary was no defence, and 

 that under the act nothing short of a written 

 order of the President would suffice (see ANN. 

 CTO., 1864, p. 424). Cartter, C. J., in giving 

 the opinion of the court in the case, in the Su- 

 preme Court, February 2d, and granting anew 

 trial, held, that the orders ofthe Secretary were, 

 in point of law, the orders of the President, and 

 that under the provisions of the statute they 

 were a justification in the case for the acts 

 charged ; and further, that the statute did not 

 contravene the provisions of the Constitution 

 securing the right of liberty without due pro- 

 cess of law, holding that to be a guaranty 

 against arrest in time of peace and not in time 

 of war, and on the further ground that in the 

 District, Congress was the Executive law-mak- 

 ing power ; it could declare what should be a 

 justification for acts committed therein. Judge 

 Wylie, in an able decision, dissented from the 

 ruling of the court granting a new trial. 



Judge Srnalley decided differently in the case 

 Walker vs. Crane, in the U. S. Circuit Court 

 in Vermont. The case at issue involved the 

 constitutionality of the act passed by Congress 

 on March 3, 1863, providing that " any order 

 of the President, or under his authority, made 

 at any time during the existence of this rebel- 

 lion, shall be a defence in all courts to any ac- 

 tion or prosecution, civil or criminal, pending 

 or to be commenced for any search, seizure, 

 arrest or imprisonment," etc. The Judge held 

 that the section of the act of March 3, 1863, 

 quoted above, was in violation of the Consti- 

 tution of the United States, and afforded no 

 protection for acts done under the authority of 

 that section ; also, that the opinion of Whiting 

 in regard to the construction of that act was 

 erroneous; and that, martial law not having 

 been declared in Vermont, the civil law re- 

 mained in full force, and was not subordinate 

 to military authority. 



A verdict was rendered in Buffalo against 

 General Scroggs, late Provost Marshal of the 

 Buffalo District, at the suit of Charles P. 

 Davis, for false imprisonment. An action 

 was brought in the Supreme Court at Bos- 

 ton, Mass., by Leonard Sturtevant vs. N. H. 

 Allen. The plaintiff alleged that in August, 

 1861, the defendant accused him of being a 

 traitor to the Government, saying "he is a 

 traitor and secessionist," in consequence of 

 which he was arrested and confined in Fort 

 Lafayette, occasioning loss of health and prop- 



erty. The jury rendered a verdict for the 

 plaintiff for $32,550 (!) damages, on the trial of 

 the cause in May. 



William B. N. Cozzens, a citizen of Pennsyl- 

 vania, was arrested in a public square in Phil- 

 adelphia, on the 29th of June, on an allegation 

 that he had been convicted by a court-martial 

 of some offence. A writ of habeas corpus was 

 allowed by Justice Thompson, of the Supreme 

 Court. The respondents refused to obey the 

 command of the writ or make any return there- 

 to, and an attachment was issued against them ; 

 the service of the attachment was forcibly re- 

 sisted, and the case was adjourned for the day. 

 All of the parties, however, subsequently ap- 

 peared, and after argument, Judge Thompson 

 rendered his deilsion, as follows : 



The petition sets forth many grievances. This man 

 was arrested, taken to the Old Capitol Prison, de- 

 prived of money and property belonging to him, no- 

 tified through newspapers that he was to be tried, 

 agd that he was tried, and that there had been some 

 finding somewhere. All that is outside of the case. 

 I have nothing to do with it here. But there is some- 

 thing for me to consider, and I have acted upon it. 

 He states that he is not guilty of a criminal offence, 

 and that he Iras been deprived of his liberty. Upon 

 that this return is made. On this return I am to 

 judge, and on nothing else. 



The return to this writ of habeas corpus is that the 

 relator, as a private citizen, was arrested, and held 

 under the authority of the President of the United 

 States. The return is in accordance to the Act of 

 Congress of March 3, 1863, that wherever the priv- 

 ilege of the writ of habeas corpus is suspended by the 

 President under the authority of the act, no officer 

 shall be compelled to produce the body of the person 

 in custody ; but upon certificate under oath that the 

 person is detained under the authority of the Pres- 

 ident, proceedings under the writ shall stay. The 

 section authorizes the President during the present 

 rebellion, whenever the public safety required it, to 

 suspend the writ of habeas corpus as it is provided, 

 and that suspension remain in force so long as the 

 rebellion continued. On this return there arises the 

 important question whether on the 29th of June last 

 the rebellion continued or not. This question I am 

 to determine. It is a fact to be judicially determined, 

 like any other fact that comes under judicial cogniz- 

 ance. The privilege of the writ of habeas corpus is 

 the sacred right of every citizen, and we are to ob- 

 serve the strictest scrutiny of any act that threatens 

 to deprive him of it. We have plainly before us the 

 fact that the power of suspension is granted only for 

 the continuance of rebellion. It ceases with the re- 

 bellion ; and I think and shall so decide, that the 

 courts are bound to give the citizen his right under 

 the privilege. Then there is the one thing to decide. 

 What shall be the evidence of the end ot the rebel- 

 lion ? This must be such as is necessary to prove 

 anv other fact. I think that we have abundant 

 evidence that the rebellion no longer continues. 



The abundance of evidence was then set forth 

 tersely and clearly by the Judge, concluding with the 

 assertion, " I cannot doubt the fact; we all know it, 

 and thank the Good Providence that there is no war 

 in the land." Why, then, should the right of the 

 citizen, limited and controlled by the existence of 

 the war, be limited and controlled" when the war has 

 ceased? This being so, the authority of the Pres- 

 ident merely, waiving all other considerations that 

 bear upon this subject, is not a sufficient warrant for 

 the arrest of a citizen. And when a warrant is issued 

 for the arrest or search of any person or place, for 

 probable cause, it must be supported by oath or affir- 

 mation; and there being no oath or affirmation here 





