470 



HABEAS COKPUS. 



25, 71), withdrawn all cases arising under the 

 Constitution and the laws of the United States 

 from the jurisdiction of the State courts, and 

 committed them exclusively to the Federal 

 courts. 



Regarding the case as involving the right of 

 the President in time of civil war to suspend 

 the writ of habeas corpus, to punish by sentence 

 of a court martial for offences against the laws 

 of war, and even for acts not made offences 

 by any law of Congress, but named in the 

 President's order of September 24th, the Court 

 denied that right as to Wisconsin, or any State 

 where the civil authorities are able, by ordinary 

 legal process, to preserve order, and claimed 

 that the power to suspend the writ of habeas 

 corpus was possessed only by Congress. (See 

 ANNUAL CYCLOPEDIA, 1862, HABEAS CORPUS.) 



. The Court declined for the present to issue a 

 writ of attachment requiring the production of 

 the body of the petitioner, though holding that 

 no sufficient cause was shown for his detention 

 Chief Justice Dixon saying that the issuing 

 of the attachment at the present time might 

 lead to collision between the State and civil au- 

 thorities and the United States military author- 

 ities, which it was possible to avoid by a short 

 delay, it was deemed advisable, adhering to the 

 precedent set by other courts and judges under 

 like circumstances, and out of respect for the 

 national authorities, to withhold it until they 

 shall have had time to consider what steps they 

 should properly take in the case. 



The conclusions arrived at by Judge Paine 

 are briefly stated as follows : 



1. The Government of the United States is invested 

 with full power by the Federal Constitution to prose- 

 cute war, aud there is no war-power outside the Con- 

 stitution. 



2. Only the people, through their representatives in 

 Congress, can suspend the writ of habeas corpus. 



3. The President can execute the laws only by such 

 means as the Constitution and the laws themselves 

 have given him power to employ. 



4. A military commander may declare martial law in 

 districts which are the actual theatre of war, where 

 hostile armies are met for the purpose of destruction, 

 or in insurrectionary districts where domestic violence 

 and discord have effectually displaced the civil author- 

 ities, but not elsewhere. 



5. Courts martial are courts of limited and inferior 

 jurisdiction, and have no jurisdiction to try any per- 

 son except such as are by law amenable to such trial. 



6. The legislative is the political department of the 

 Government, and when the writ of habeas corpus is not 

 suspended by Congress, the Executive has no political 

 power to imprison the people. 



Judge Paine further declares that he should 

 consider the establishment of the doctrine that 

 the President possesses illimitable power over 

 the land by a declaration of martial law " as a 

 calamity little if any less to be deplored than 

 the success of the rebellion." 



On the 20th of January an article appeared 

 in the " Daily Philadelphia Evening Journal," 

 under the title of " Davis's Message." Between 

 twelve and one o'clock in the night of the 28th 

 Mr. Albert D. Boileau, the editor and publish- 

 er of the paper, was arrested at his residence in 



Philadelphia by a detachment of soldiers, sent 

 to Baltimore and confined in Fort McHenry. 

 As soon as the fact became known it created 

 great excitement. A paper published in Philadel- 

 phia gave the following reason for the arrest and 

 account of the subsequent transactions : " The 

 columns of the Journal have recently been filled 

 with articles abusing the Government and bit- 

 terly denouncing the Administration, and it is 

 probable that to this fact Mr. Boileau owes his 

 sudden and involuntary visit to Washington." 



On Wednesday afternoon, at four o'clock, the 

 provost marshal, with his guard, in pursuance 

 of the same order, marched to the office of the 

 " Evening Journal " and took possession of it. 

 Their orders were to retain possession, and un- 

 til further orders allow no future publication 

 of the paper. The guard stacked their arms in 

 the office, and remained there. 



On the 29th Judge Ludlow directed the at- 

 tention of the grand jury of Philadelphia to the 

 arrest as follows : 



Gentlemen of the Grand Jury: It comes to my 

 knowledge that within the last twenty-four hours a 

 citizen of this Commonwealth, and of this county, has 

 been suddenly arrested at his residence in this city, 

 and has been forcibly carried, against his will, be- 

 yond the limits of this State and the jurisdiction of this 

 court. 



Such events have heretofore taken place, but, as we 

 have been anxious to support the United States Gov- 

 ernment in every way compatible with a proper dis- 

 charge of our duty, we were not inclined to believe that 

 those in authority would attempt to exercise a power, 

 under all circumstances questionable and delicate, 

 when temporary excitement had given way to reason, 

 and a patriotic and I believe an honest desire to do a 

 great public duty had resolved itself into a settled 

 purpose to discharge that duty according to law, and 

 with at least a decent respect for the laws of this Com- 

 monwealth and for the constituted authoritities of the 

 State. 



The time has arrived w_heu we can no longer hold our 

 peace, when the obligations imposed upon us by our 

 oaths of office compel us #t every hazard to direct the 

 Grand Jury to inquire into and determine by whose or- 

 der and by what persons this arrest has been made; 

 and if, after an impartial examination, it shall appear 

 that any citizen has been forcibly abducted from the 

 county, to inform the Grand Jury that it is their duty 

 to present the facts in the case to the Court where bills 

 of indictment may be framed, and the accused persons, 

 if they have committed a crime, be tried, and if guilty 

 be punished for what in that event may become a crim- 

 inal act. 



You will see, gentlemen, that the Federal and State 

 Governments provided for the trial of those charged 

 with having committed offences against either, but the 

 framers of these Constitutions intended that the citizen 

 should not be arrested without having an opportunity 

 to defend himself. 



It may be supposed by some that the offence of trea- 

 son cannot be punished under the Constitution of the 

 United States except by the exercise of military power. 

 Such, however, is not the case, and that man is not 

 only ignorant of the law, but must be intentionally so. 

 You will observe that, under the Constitution and laws 

 of the United States and of this State, a man who is in 

 point of law a traitor, or who aids in any material way 

 the enemy, may be punished, and that with great sever- 

 ity, and he ought thus to suffer. 



As the laws then do exist, as the tribunals of the 

 United States Government and the State are open, a* 

 magistrates abound at every corner of the streets, and 

 are known to be loyal men as peace reigns in this- 



