HABEAS COEPUS. 



471 



county, and no impending danger destroys the author- 

 ity of law as duly administered by the State courts, 

 and lays its power in the dust, by what right or pre- 

 tended right can the persons making this arrest justify 

 it ? Certainly not upon the ground of necessity, for no 

 necessity exists, and certainly not upon a pretended 

 Executive power, for it will be, it must be, admitted 

 that that power can only exist when the law is silent, 

 and we have distinctly shown that by the Constitution 

 of the United States, and the law of this State, the Gov- 

 ernment is already secured, at least in this court, 

 against the designs of those who may attempt by any 

 method to destroy it. 



Did the people of this Commonwealth, when they en- 

 tered into the Union ever agree to devolve upon 

 either the President of the United States, Congress, or 

 the Judiciary, or all three combined, the power to sus- 

 pend the privilege of the writ of habeas corpus in a 

 State or district when the " public safety did not re- 

 quire it." If, in the case soon to be examined by you, 

 you discover that the arrest was ordered by authority 

 of the laws of the United States, and commonly called 

 the "military," as distinguished from the "martial 

 law," you will state that fact, because it may possibly 

 be that Congress has enacted such laws as they may 

 by virtue of the Constitution legally enact, and which, 

 as they affect the government of the army of the Unit- 

 ed States, may be constitutional and legal when ap- 

 plied to those who are amenable to that particular code 

 of laws. 



Gentlemen, I have alone to take the responsibility of 

 addressing you to-day. It has not been done without 

 serious reflection. From the commencement of the 

 rebellion I have endeavored, in every possible legal 

 method, to support the constituted authorities. We 

 have even failed to notice the fact officially that arbi- 

 trary arrests have been made in this county, because, as 

 we have before intimated, we had hoped that they would 

 cease. That hope has been destroyed. A legal and 

 moral necessity urges us to this step, not to counte- 

 nance any act committed by any man against the au- 

 thority of the General Government, but to sustain a 

 right as clear as the noonday sun, as vital as life-giv- 

 ing breath, without the existence of which the Gov- 

 ernment itself is a stupendous deception, and which, 

 if firmly maintained now and here, will go far to unite 

 a people of immense resources, and which power can 

 yet be wielded as a unit, when and as soon as the con- 

 stitutional rights of each citizen shall be respected and 

 enforced. 



I request you at once to suspend all other business 

 before you at present, and instruct the District At- 

 torney of this county to send to Gen. Montgomery 

 and the Provost Marshal, together with all other per- 

 sons who have any knowledge of this transaction, and, 

 after you shall have heard them, your duty will be sim- 

 ply to represent the facts to the Court. 



The Grand Jury then retired. 



On January 30th, the Grand Jury made a 

 presentment relative to the arrest of Mr. Boi- 

 leau, of the "Evening Journal." They stated 

 that the testimony before them showed that 

 the arrest was made by order of Gen. Schenck, 

 for the publication of an editorial article under 

 the title of "Davis's Message," and other arti- 

 cles of a like dangerous character, tending to 

 the support and encouragement of the rebellion 

 against the United States Government. After 

 quoting the* editorial article alluded to, the jury 

 stated that they could not refrain from saying 

 that, whilst they individually or as a body 

 could not conscientiously do anything which 

 would have a tendency to weaken the arm of 

 the General Government in the exercise of its 

 constitutional authority for the suppression of 

 this most wicked and causeless rebellion, yet 



they feel equally bound to enforce all laws that 

 have the protection of life, the security of prop- 

 erty, and the liberty of the citizen in their 

 sacred keeping. After reading the present- 

 ment, Judge Ludlow said : 



I shall direct the District Attorney to examine the 

 document, and to frame such bills of indictment as he 

 may find to be necessary in support not only of the 

 laws of Pennsylvania, but of the Constitution of the 

 United States. We can then arrive at the question of 

 the legality of the charges therein contained. The rec- 

 ord will then present detailed charges, and the defend- 

 ants may object to prosecution for any cause they may 

 have, and they may also have the judgment of this Court, 

 and also final judgment of the Supreme Court, in case 

 they should be dissatisfied with the finding of this 

 court. 



The Grand Jury was then discharged. 



This action of Judge Ludlow was severely 

 commented upon and repudiated by Judge 

 Alison, who presided at. the next term of the 

 Court, commencing a few days after. He says, 

 in his remarks to the Grand Jury : 



His Honor Judge Ludlow, on Thursday, the 29th 

 ultimo, called the attention of the Grand Jury, in a 

 special charge, to the fact that it had come to his 

 knowledge that a citizen of this Commonwealth, and 

 of this county, had been suddenly arrested at his resi- 

 dence, and had been forcibly carried against his will 

 beyond the limits of this State, and the jurisdiction of 

 this court. Accompanying this statement was a re- 

 quest that the Grand Jury would suspend all other 

 business, and an instruction to the District Attorney 

 to send for the persons named ; directing that the 

 Grand Jury, after having heard the witnesses brought 

 before them, present the facts to the court. 



On the following day a presentment was made to 

 the court in substance that A. D. Boileau, the pro- 

 prietor of the " Evening Journal," had been arrested 

 by military officers in the service of the United States, 

 and conveyed to Fort McHenry ; the alleged cause of 

 the arrest was the publication of articles tending to 

 the support and encouragement of rebellion against the 

 Government of the United States. 



Upon this presentment, the District Attorney, by 

 the Judge, then holding the court, was directed to 

 prepare and send before the Grand Jury bills of in- 

 dictment. 



To this proceeding I am compelled to except, re- 

 garding it as wrong in every aspect in which it can be 

 viewed. I would be derelict in my duty as a judge of 

 this court, if, by my silence, I might even seem to 

 sanction it, and if, in speaking, I did not place upon it 

 my most emphatic condemnation. It was unwise, be- 

 cause it was unnecessary ; the ordinary mode of crimi- 

 nal procedure being fully adequate to remedy the 

 wrong, if a wrong has been committed; and that 

 method being, in my judgment, the only proper and 

 legal way in cringing the case in court. It was inju- 

 dicious, for, however well intended, the consequence 

 of a judge, of his motion, upon mere information ob- 

 tained in no legal way, for there was no complaint 

 under oath, with unnecessary and unusual haste, mak- 

 ing use of his official position, to institute a prosecu- 

 tion, strictly personal and private in its nature, is to ren- 

 der the whole proceeding liable to misconstruction ; to 

 place this court in a false position before the country, 

 as anxious for and of its own motion seeking a cause 

 of difficulty with the Government; and because the 

 legitimate result of such action is to precipitate a col- 

 lision between the courts and General Government, 

 when such collision should by all proper means and to 

 the last extremity be avoided. 



There is still another reason why I cannot approve 

 of the proceedings under consideration, and that is, 

 because I believe them to be unauthorized by the law 

 of the land, having no established principle regulating 



