490 



HABEAS COEPUS. 



.and that the following special instructions for persons 

 in the military service of the United States be strictly 

 observed, viz. : 



The attention of every officer in the military service 

 of the United States, is called to the proclamation of 

 the President, issued on the 15th day of September, 

 1863, by which the privilege of the writ of habeas corpus 

 is suspended. 



If therefore a writ of habeas corpus should, in viola- 

 tion of the aforesaid proclamation, be sued out and 

 served upon any officers in the military service of the 

 United States, commanding him to produce, before 

 anv Court or Judge, any person who is held in his cus- 

 tody by the authority of the President of the United 

 States, belonging to any one of the classes specified in 

 the proclamation, it shall be the duty of such officer to 

 make known by his certificate under oath, to whomso- 

 ever may issue or serve such writ of habtas corpus, 

 that the person named in said writ is detained by nim 

 as a prisoner under the authority of the President of 

 the United States. And such return having been made, 

 if any person serving or attempting to serve such a 

 writ, either by command of any Court or Judge or 

 otherwise, and with or without process of law, shall 

 attempt to arrest the officer making such return and 

 holding in custody such person, the said officer is here- 

 by commanded to refuse submission and obedience to* 

 such arrest, and if there should be any attempt to take 

 such person from the custody of such officer, or arrest 

 such officer, he shall resist such attempt, calling to his 

 aid any force that may be necessary to maintain the 

 authority of the United States, and render such resist- 

 ance effectual. JAMES B. FRY, 

 Provost-Marshal-General. 



The courts were immediately called upon to 

 decide whether the proclamation affected cases 

 in which the writ had already been issued, and 

 which were then pending. Several cases were 

 in this position in the U. S. District Court of 

 Pennsylvania, before Judge Cadwalader. In 

 many of these cases postponements of the 

 hearings had been allowed on the application 

 of the Boards of Enrolment, and in one case 

 the writ had been issued two weeks before, and 

 the final hearing deferred on account of con- 

 tinuances granted on the Board of Enrolment's 

 application. Judge Cadwalader, it appears, in- 

 vited a full and free discussion, in order that 

 he might have all the information possible be- 

 fore giving a decision. 



One new case was presented which raised an 

 important question. It is thus stated : 



On Tuesday Gustavus Remak, Esq., counsel for a 

 drafted man named John Yunger, prepared a petition 

 in the usual form in his behalf for a writ of habeas 

 corpus. Yunger, it seems, had been served in the 

 sixth ward with a notice that he had been drafted, but 

 as the notice had been directed to William, and not 

 John, and as he alleged the name of John Yunger had 

 not been drawn from the wheel, he appeared before 

 the board claiming exemption. The board disallowed 

 his claim, and, taking his notice, erased the name of 

 William and inserted that of John. 



The President's proclamation intervening, his counsel 

 on Wednesday appeared, and, together with the peti- 

 tioner, presented the following supplemental affidavit : 



John Yunger, tho petitioner named In the foregoing pe- 

 tition, beinc duly sworn according to law, doth further de- 

 pose and say : 1 am not held under the command, nor am I 

 in the custody of any military, naval, or civil officer of the 

 United States, either as a prisoner of war, spy, aider or abet- 

 tor of the enemy, or as an officer, soldier, nr seaman enrolled, 

 drafted, or mustered In or belonging to the land and naval 

 forces of tho United States, or as a deserter therefrom, or 

 otherwise amenable to military law or the rules and articles 

 of war, or the rules and reflations prescribed for military 

 and naval service by authority of tho President of the 



United States, or for resisting a draft, or for auy other of- 

 fence against the military or naval service. 



It will be noticed that the words of the President's 

 proclamation are quoted in order to aver that the rela- 

 tor does not come within its terms. Judge Cadwalader 

 granted a rule to show cause why the writ should not 

 be granted, and this will bring up the whole question. 

 In tne course of the discussion Judge Cadwalader stated 

 that the question was not whether there were hard- 

 ships or whether a man had a remedy, but whether 

 the remedy bv a writ of habeas corpus was suspended. 

 Congress could not, constitutionally, suspend all reme- 

 dies which a man might have, but could they not sus- 

 pend this particular form of remedy? 



Mr. Remak stated that he should follow a line of ar- 

 gument in order to present the case thus : 



1. Has Congress the power to delegate the authority 

 of suspending the writ of habeas corpus to the Presi- 

 dent of the United States? or is not Congress bound, 

 if the Constitution invests it with the right of suspen- 

 sion, to exercise that power ? 



2. If Congress have the power so to delegate that 

 authority, can they do it for an indefinite period of 

 time? Is not "during the present rebellion" an in- 

 definite period ? 



3. The act of Congress, if valid, authorizes the sus- 

 pension " of the privilege of the writ of habeas corpus 

 in any case throughout the United States, whenever in 

 his judgment the public safety may require it." This 

 means that the President shall exercise his judgment 

 in each individual case as it arises, but does not em- 

 power the President to suspend the writ in all cases 

 that may occur in future, as he does in his proclama- 

 tion, lie must decide in each case. 



4. The act of Congress does not contemplate that the 

 writs shall be refused by the judges, but, on the con- 

 trary, states in what manner, when issued, the writs 

 shall be suspended. 



5. The President's proclamation does not embrace 

 parties who are applying for the writ when not drafted, 

 but claimed as drafted persons. 



He contended that the power to suspend the privi- 

 lege of the writ existed in Congress, and in Congress 

 alone, as it is a legislative power ; and this power 

 would seem to be limited in the Constitution, first, as 

 to the territory to be affected ; second, as to the time 

 during which it is to last; and, third, as to individuals 

 engaged or charged with being engaged in the rebel- 

 lion or invasion ; that is to say, there being nothing to 

 the contrary in the Constitution, it was not contempla- 

 ted by the framers of the Constitution that Congress 

 should ever suspend the writ except in parts of the 

 United States. The place where the rebellion or inva- 

 sion exists forms a material question. Mr. Remak's 

 next point was that the proclamation was limited to 

 the individual. It must be against some person charg- 

 ed with an offence, but it does not touch the civilian 

 who is not charged or is not heldbv any magistrate or 

 any officer, civil or military, but who is still in the en- 

 joyment of his rights, except that he stauds in the po- 

 sition of having been enrolled, as one who may be 

 called upon to serve the United States, and who may 

 or may not be exempt on account of age or disability. 

 When he had concluded 



Judge Cadwalader said that, as at present advised, 

 he would not hear the district attorney. It appeared 

 to him that the words " either as " in the proclamation, 

 governed all the words until we came to the words " or 

 as," and hence that any person held " as " a soldier, 

 enrolled or drafted, whether rightfully or not, came 

 within the meaning of the act of Congress. There arc 

 none of these cases where the parties ao not allege that 

 they are held as " drafted " men, and hence they place 

 themselves within the provisions of the act and the pro- 

 clamation. My present opinion is that the proclamation 

 at 



clait 



over them 



14th section of the Conscription Act, there is no doubt 



that the proceedings are suspended. (These are the 



cases of appeals from the decision of the Board of Enrol- 



