358 



HABEAS CORPUS. 



which we now decline to order any further process in 

 this case. 



Judge Morsell, the Associate Judge then on 

 the bench, submitted the following : 



As a member of this Court, and on its behalf, I wish 

 it understood that, notwithstanding the blow levelled at 

 this Court,! do distinctly assert the following principles: 



1st. That the law in this country knows no superior. 



2d. That the supremacy of the civil authority over 

 the military cannot be denied ; that it has been estab- 

 lished by the ablest jurists, and, I believe, recognized 

 and respected by the great Father of the Country dur- 

 ing the Kevolutionary War. 



3d. That this Court ought to be respected by every 

 one as the guardian of the personal liberty of the cit- 

 izen, in giving ready and effectual aid by that most 

 valuable means, the writ of habeas corpus. 



4th. I therefore respectfully protest against the right 

 claimed to interrupt the proceedings in this case. 



This opinion of Judge Morsell was also or- 

 dered to be placed on the record. 



A writ of habeas corpus was also issued by 

 Judge Garrison of Brooklyn, N. Y., and served 

 upon the officer in charge of the prisoners 

 at Fort Lafayette, commanding that one of 

 them should be brought before him, but with- 

 out any success. 



The declarations of the Government coincide 

 with the evidence of these facts. 



On the 5th of July, Attorney-General Bates 

 prepared an opinion, at the request of the Pres- 

 ident, on the suspension of the privilege of the 

 writ of habeas corpus. He commences his 

 opinion with these words : 



SIR : You have required my opinion in writing upon 

 the following questions: 



I. In the present time of a great and dangerous in- 

 surrection, has the President the discretionary power 

 to cause to be arrested and held in custody persons 

 known to have criminal intercourse with the insurgents, 

 or persons against whom there is probable cause for 

 suspicion of such criminal complicity ? 



II. In such cases of arrest, is the President justified 

 in refusing to obey a writ of habeas corpus issued by 

 a court or a judge, requiring him or his agent to pro- 

 duce the body of the prisoner, and show the cause of 

 his caption and detention, to be adjudged and disposed 

 of by such court or judge? 



Both questions were answered in the affirma- 

 tive by the Attorney-General. The basis of his 

 argument is in these words : 



_ To make my answer to these questions at once con- 

 sistent and plain, I find it convenient to advert to the 

 great principle of government as recognized and acted 

 upon in most, if not all, the countries in Europe, and 

 to mark the difference between that principle and the 

 great principle which lies at the bottom of our Na- 

 tional Government. 



Unity of power is the great principle recognized in 

 Europe ; but a plan of " checks and balances forming 

 separate departments of government, and giving to 

 each department separate and limited powers, has been 

 adopted here. These departments are coordinate and 

 co-equal ; that is, neither being sovereign, each is inde- 

 pendent in its sphere, and not subordinate to the others, 

 either of them or both of them together. If one of the 

 three is allowed to determine the extent of its own pow- 

 ers, and that of the other two, that one can in fact con- 

 trol the whole government, and has become sovereign. 

 The same identical question may come up legitimately 

 before each one of the three departments, and be de- 

 termined in three different ways, and each decision 

 stand irrevocable, binding upon the parties to each 

 case, for the simple reason that the departments are 



coordinate, and there is no ordained legal superior 

 with power to revise and reverse their decision. To 

 say that the departments of our Government are co- 

 ordinate, is to say that the judgment of one of them is 

 not binding upon the other two, as to the arguments 

 and principles involved in the judgment. This inde- 

 pendence of the departments being proved, and the 

 Executive being the active one, bound by oath to per- 

 form certain duties, he must be, therefore, of neces- 

 sity, the sole judge both of the exigency which re- 

 quires him to act, and of the manner in which it is 

 most prudent for him to employ the powers intrusted 

 to him, to enable him to discharge his constitutional 

 and legal duty. Such is the outline of the prelimina- 

 ries upon which this opinion rests. 



When it first became evident that the Gov- 

 ernment would arrest citizens, and refuse the 

 privilege of the writ of habeas corpus, con- 

 sternation seized the public. What constitutes 

 treason, and what rules will control the action 

 of the Government in ordering the arrest of 

 any individuals, became at once most important 

 questions. The clause of the Constitution of 

 the United States relating to treason is in these 

 words : " Treason against the United States 

 shall consist only in levying war against them, 

 or in adhering to their enemies, giving them 

 aid and comfort. No person shall be convicted 

 of treason, unless on the testimony of two wit- 

 nesses to the same overt act, or confession in 

 open court." 



The following letter from the Secretary of 

 State, Mr. Seward, to the agent of the New 

 York and Virginia steamship company, G. 

 Heineken, furnishes an official statement of the 

 views of the Government relative to the par- 

 ticular act to which it refers : 



DEPARTMENT OF STATE, ) 

 WASHINGTON, May 16, 1861. | 



SIR: I have received your letter of yesterday's date, 

 asking me to give you in writing my reasons for con- 

 sidering an acceptance on your part of Governor 

 Letcher's proposition to purchase the steamships York- 

 town and Jamestown, recently seized by his orders, 

 and now in his possession, an act of treason. With 

 this request I readily comply. 



An insurrection has broken out in several of the 

 States of this Union, including Virginia, designed to 

 overthrow the Government of the United States. The 

 executive authorities of that State are parties to that 

 insurrection, and, so, are public enemies. Their action 

 in seizing or buying vessels to be employed in execut- 

 ing that design is not merely without authority of law, 

 but is treason. It is treason for any person to give 

 aid and comfort to public enemies. To sell vessels to 

 them which it is their purpose to use as ships-of-war, 

 is to give them aid and comfort. To receive money 

 from them in payment for vessels which they have 

 seized for those purposes, would be to attempt to con- 

 vert the unlawful seizure into a sale, and would sub- 

 ject the party so offending to the pains and penalties 

 of treason, and the Government would not hesitate to 

 bring the offender to punishment. 



I am, sir, your obedient servant, 



WILLIAM H. SEWARD. 

 To G. HEINEKEN, Esq. 



On the 17th of August Mr. Seward writes to 

 Mr. Adams, the American Minister at London, 

 as follows : 



On the 5th instant I was advised by a telegram from 

 Cincinnati that Robert Muir, of Charleston, was on 

 his way to New York to embark at that port for Eng- 

 land, and that he was a bearer of despatches from the 

 usurping insurrectionary authorities of Richmond to 



