392 



FREEDOM: or THE PRESS. 



ence of the present rebellion, shall be a defence in all courts 

 to any action or prosecution, civil or criminal, pending or to 

 te commenced, for any search, seizure, arrest, or imprison- 

 ment, made, done, or committed, or acts omitted to be done 

 under and by virtue of such order," &c. 



He remarked that this act might be entitled "An 

 act to authorize the commission of wrongs;" for the 

 very next section speaks of them eo nomine, as ap- 

 plied to the case at bar, thus : 



SEC. 5. And lie it further enacted, That if any " criminal 

 prosecution " has been commenced in any State court against 

 any military officer, for any wrong done by virtue of any 

 authority derived from the President of the United States, 

 &c., LCC. 



On the defence he argued : 1. It cannot- be dis- 

 puted that each of the acts complained of was a tres- 

 pass at common law. 2. If Congress possessed the 

 constitutional power, by express statutory terms, to 

 direct the defendants to commit the trespasses in 

 question, Congress cannot constitutionally delegate 

 that power to the President in such general terms as 

 are employed in the section quoted. 3. Each of the 

 acts complained of in this prosecution is repugnant 

 and odious to the common law of England and the 

 constitution of the United States, and the President's 

 command to commit them was, therefore, still the 

 command of a trespasser and a superior wrong-doer, 

 and quoted Little vs. Barreme (2 Cranch, 179). The 

 effect of the defence proposed is to set the Executive 

 "higher" than the fundamental law. The plea for 

 the orders is probably to be found in the President's 

 reply to the address of the Chicago clergy, 1862, 

 viz.: "As Coinmaiider-in-Chief of the Army and 

 Navy, in time of war I suppose I have a right to 

 take any measure which may best subdue the ene- 

 my." But the plea is a bold defence of usurpation. 

 Mr. Hall adroitly quoted from the Republican address 

 at Pittsburg, February 22, 1856, which well says on 

 this head : " All usurpations in countries professing 

 to be free must have the color of law for its support. 

 No outrage committed by power upon popular rights 

 is left without some attempts at vindication. The 

 partition of Poland, the overthrow of the constitu- 

 tion of Hungary, the destruction of Irish independ- 

 ence, &c., &c., were consummated with a scrupulous 

 observance of the forms of law." The effect of the 

 section is to delegate to the Executive the right to 



E ractically legislate the exception to an act else un- 

 iwful. Congress generally authorized him to per- 

 form unknown, illimitable, immeasured, boundless 

 wrongs, and he is to select or create the specialities 

 of them. Caligula wrote bis laws, but hung them up 

 so high they coxild not be read, and the citizen was 

 punished when he could not know the law. But 

 Congress does not even specify the law. It allows 

 the President to frame it within his own breast, and 

 apply it after an offence has been committed. Sup- 

 pose the President should, by telegraph, order Mar- 

 shal Murray to arrest Gov. Seymour, and if he re- 

 sisted, shoot him. Suppose the Governor did resist, 

 and the Marshal killed, and was tried in Albany for 

 homicide, would that order absolve him ? A legisla- 

 tive body, when it clothes with legality an act other- 

 wise unlawful, must specify the act. A New York 

 legislature might grant the corporation of this city 

 power to legalize or permit an otherwise nuisance by 

 specifying it. Could it grant such power by saying 

 "may permit any nuisance"? When a legislative 

 body acts specifically, but makes its enactments con- 

 tingent upon an event beyond its control, that enact- 

 ment is unconstitutional, because its power is sub 

 tnoJo delegated (quoting Barto vs. Hiuirod, 8 New 

 York, 496). When the editor of the Louisiana Cou- 

 rier published (Friday, March 3, 1815) the famous 

 article about Gen. Jackson martial law prevailing 

 the latter did not suppress the paper, but, upon ob- 

 taining from the editor the name of the writer, ar- 

 rested him. At that time "New Orleans was a 

 ;amp, and 'Judge' Hall a soldier." (2 Parton's 

 Jt>ckson, 314.) These seizures and destruction of 



May, 1864, were clearly in the light of punishments 

 in advance of investigation or trial. At this time 

 New York was not a camp, and none of the parties 

 who were injured were soldiers. New York was in 

 full possession of all her civil immunities. The case 

 of Gen. Jackson was one occurring within warlike 

 lines, and in the presence of an enemy. It was a 

 case of military necessity, per se. 



He further said: I understand our opponents to 

 claim that the arrest and seizures were made by vir- 

 tue of overruling military necessity, because New 

 York was at war as an integral portion of the Union, 

 and he claimed that this "overruling military neces- 

 sity" cannot occupy a better vantage ground than that 

 held by martial law ; that as martial law cannot operate 

 beyond the field of actual warlike operations, no more 

 can " military necessity," and that both are unconsti- 

 tutional unless in face of an enemy or of insurrection- 

 ists. (Luther vs. Borden, 7 Howard United States, 

 45.) " Even where there is martial law, and it is exer- 

 cised for the purposes of oppression, or any injury ia 

 wilfully done to person or property, the party by 

 whom, or by whose order it is committed, would un- 

 doubtedly be answerable." (Ibid., p. 46.) But there 

 is no ground for saying that New York city, in May, 

 1864, was in a legal condition to allow of military neces- 

 sity. Can martial law and civil exist together? To 

 be sure the President, in his recent Kentucky procla- 

 mation, assumes this legal coexistence ; but in what 

 treatise on international law is the assumption sub- 

 stantiated? Not in Halleck. Nor is it compatible 

 with their nature. This is clearly indicated by the 

 course of reasoning of the United States Supreme 

 Court, in Luther vs. Borden, 7 Howard a case 

 under the Dorr rebellion. Will any one be bold 

 enough to say, in view of the history of our ances- 

 tors and ourselves, that the President of the United 

 States can extend martial law over the entire coun- 

 try or over any defined geographical part thereof, 

 save in connection with some particular military 

 operations which he is carrying on there ? (Curtis 

 [ex-Judge] on Ex. Power, p. 23.) The prize cases 

 are relied upon by our opponents (2 Black, U. S. 

 Rep., p. 635), to prove that the whole nation is in a 

 state of war. But the prosecution claim that the 

 decision in question expressly limits the lines of war 

 within the lines of bayonets and blockading squadrons 

 leaving all beyond such lines within the unfettered 

 exercise of the civil power. New York is no more 

 at war than she was during the whiskey insurrection 

 or the Dorr rebellion. But, suppose the point be 

 conceded, then, it is argued that when we were en- 

 gaged in war with England, the courts of this State 

 decided that the law of military necessity could not 

 constitutionally act upon the citizen, but only upon 

 the soldier. During the last war with Great Britain 

 Chief-Justice Kent discharged a military prisoner held 

 by Gen. Morgan Lewis. The prisoner was named 

 Samuel Stacy, Jr. Commodore Chauncey verbally 

 ordered one Captain Smith to arrest Stacy for being 

 treasonably connected with the enemy. Smith de- 

 livered him to Gen. Lewis, who confined him, 

 through his provost marshal, under the following 

 order : " Receive into custody, &c., Samuel Stacy, 

 charged by the said commodore with an act of high 

 treason against the Government of the United States, 

 committed within the territory of the King of Great 

 Britain. J. Chambers, Ass.-Adj.-Gen." In deliver- 

 ing the opinion (10 John. 331), Judge Kent recog- 

 nized the fact that a commander-in-chief had no more 

 lawful authority to hold all the citizens of the entire 

 country outside of the sphere of his actual operations 

 in the field amenable to his military edicts, than he 

 had to hold all the property of the country subject 

 to his military requisitions ; that he is not the military 

 commander of citizens of the United States, but of 

 its soldiers. To the same effect has the argument 

 of Senator Linn, on the bill to refund Jackson's fine 

 (14 Ben., p. 627). In parity of illustration are Buckle 

 vs. Money (2 Wilson, 205"), and Sir Chas. Gould's 



