Argument of Hon. Aaron F. Perry.
May it please the court: When General Burnside requested me to assist the district attorney on this occasion, he forebore to give me any instructions, except to present such considerations to the judgment of the court as should seem to me right and proper. I have a distinct impression that he has no preference that the questions here presented should be heard before any other jurisdiction or tribunal rather than this; and that he wishes his proceedings to be here discussed by his counsel, chiefly on the broad basis of their merits; that they should be made to rest on the solid ground of the performance of a high and urgent public duty.
The main argument which I shall present to the court, will, therefore, be founded on the obligations, duties, and responsibilities of General Burnside as a major general in command of an army of the United States, in the field of military operations, for the purposes of war, and in the presence of the enemy.
I shall not place it on any ground of apology, excuse, or palliation, but strictly and confidently on the ground of doing what he had a lawful constitutional right to do; and on the ground of performing a duty imposed upon him as one of the necessities of his official position.
I shall make no plea of an exigency in which laws are suspended, and the constitution forgotten, but shall claim that the constitution is equal to the emergency, and has adequately provided for it; that the act complained of here is an act fully warranted by law, and authorized by the constitution.
I shall support this claim by references to more than one opinion of the supreme court of the United States, and to other authorities. * * *
Mr. Pugh has correctly argued that a habeas corpus is in the nature of a writ of error to examine into the legality of an arrest or commitment. If it appear that the arrest or commitment complained of was a legal act, the writ of habeas corpus will not issue; because its whole office is to inquire into the legality of the act, and the court will not do a nugatory and useless thing.
A habeas corpus does not meddle with arrests legally made. There are well-known cases where *894 the civil magistrates and officers of the peace make arrests on sight and without warrant. In such cases the legality depends upon circumstances to make a case where an arrest is allowed by law without a warrant. These circumstances, if they exist, are a warrant, or equivalent to it. So, if war or any other state of affairs exists, which, by recognized principles, authorizes, requires, and justifies an arrest by military force, no habeas corpus can meddle with it.
The order which sends an army to make war, is all the warrant it needs for every necessary act of war. It may capture and imprison enemies, and not those in arms only. ‘The whole,’ says Vattel on Law of Nations (page 346), ‘is deduced from one single principle from the object of a just war, for when the end is lawful, he who has a right to pursue that end, has, of course, a right to employ all the means which are necessary for its attainment.’
One of the undoubted means of war is to take life. As the greater includes the less, the right to take life implies the right to take everything. ‘All those persons belonging to the opposite party (even the women and children) he may lawfully secure and make prisoners, either with a view to prevent them from taking up arms again, or for the purpose of weakening the enemy.’ * * *
‘At present, indeed, this last-mentioned expedient is seldom put in practice by the polished nations of Europe: women and children are suffered to enjoy perfect security, and allowed permission to withdraw wherever they please. But this moderation, this politeness, though undoubtedly commendable, is not in itself absolutely obligatory, and if a general thinks fit to supersede it, he cannot be justly accused of violating the laws of war.’ Vatt. Law Nat. pp. 346, 352.
Persons so captured or arrested are prisoners of war. ‘For the same reasons which render the observance of those maxims a matter of obligation between state and state, it becomes equally and even more necessary in the unhappy circumstance of two incensed parties lacerating their common country.’ Id. 425.
The application to citizens in revolt of the rules of war is in the interests of mercy. If they should be put upon trial before a jury in such moments of overwhelming excitement, one of two results would follow. If the jury should not be so divided by the passions raging through the whole population as to disagree, and thus bring the law into contempt, their passions would take them to one side or the other. Men might be let loose, and certainly would be, whom the safety of the state required to be restrained, or more probably convicted and executed without sufficient evidence. When society is imperiled by intestine war, the passions rage which occasioned the war, the entrails of the volcano, covered for a while, have at length broken forth. Smoke and ashes obscure the sky. Fiery floods pour along the earth. No good man could be impartial. Who claims to be impartial impeaches himself. Believing his government to be in the right, interest, feeling, lawful duty, compelled him to uphold it with all his power. He has no decent pretext, certainly no lawful excuse, for throwing on others a duty to uphold the government which he shrinks from. It is each man’s duty as much as any other’s. Its enemies are, and in the nature of the case must be, his enemies; its friends his friends. The law allows him no other position. On the other hand, he who believes the government to be wrong has no choice but to sympathize with its enemies. He must assist them, and will assist them, either openly or by secret and suppressed sympathy. On one side or the other, men go to the jury box under the influence of deep feeling. The law of nations, and rather the laws of war, which in civil commotions authorize the opposing parties to treat each other as prisoners of war, is not, therefore, an aggravation of dangers, but an amelioration of them. Vatt. Law Nat. p. 426, assigns two reasons for it: One, lest the civil war should become more cruel. The other, the danger of committing great injustice by hastily punishing those who are accounted rebels. ‘The flames of discord and civil war are not favorable to the proceedings of pure and sacred justice.’ More quiet times are to be waited for. It appears then, that in time of war the fact of war authorizes and legalizes arrests; and the order for an army to make war is its sufficient warrant for making such arrests as are justified by the laws of war. I am not now inquiring whether the arrest of Clement L. Vallandigham is justifiable by the rules of war. That inquiry will follow in its due course. I am now adverting to the laws of war, and showing that arrests of some kinds are authorized. These principles are, I suppose, undisputed and indisputable. It follows that such arrests are legal; and by showing the existence of circumstances making the arrest legal, a sufficient answer is made to a habeas corpus. The writ is not in such case suspended. It is respected, upheld, enforced, and performs all the office a habeas corpus can in any case perform.
It is a logical consequence, unavoidably resulting from the premises, that while all wars, insurrectionary or foreign, bring into action the laws of war, they do not, necessarily, suspend the writ of habeas corpus. The legislature may enact a statute making some act a crime which was not so before, and authorizing persons guilty of it to be arrested and held; or authorizing a writ of civil capias, under which the body is seized and held in circumstances not before authorizing such an arrest. These things not only may be done, but are frequently done. No one thinks of them as a suspension or abolishment of habeas corpus. So, in war, the laws of war authorize arrests which were not authorized until those laws were brought into play by the fact of war. In these cases habeas corpus is no more suspended than in the *895 others. Full force and effect may be given it while enforcing the laws of war. And this is the constitutional view. The power to declare war is broadly given; the power to suspend habeas corpus is given distinctly from the war power, and in addition to it, ‘when in cases of rebellion or invasion, the public safety may require it.’ If the operation of the laws of war were a suspension of habeas corpus, everything had been said when congress was authorized to declare war. No further declaration was needed. It is against correct rules of construction to hold that habeas corpus suspension is intended to be merely one of the means of war. They might as well have provided for making war in one paragraph, and the have provided, as a separate and distinct power, authority to kill and capture enemies in battle. War may be made. In addition to making war, habeas corpus may be suspended in certain contingencies.
Learned counsel, on the other side, has called our attention to the act of congress of March 3, 1863, and to another act of congress, showing that the offence with which petitioner is charged is an offence against the civil law, and punishable under a law of congress; one for which he may be held and tried before the civil tribunals. Neither of these acts interferes with my argument. The first section of the act of March 3, 1863, authorizes the president, in contingencies there named, to suspend the writ of habeas corpus. The learned counsel says he has not suspended it. Undoubtedly, if he had suspended it, there would be an end of this case. I do not claim that it is suspended. May whole argument proceeds on the ground that it is not suspended, but in full force. That act of congress is based upon the idea that arrests had before that time been made, and might again be made, which could only be sustained by a suspension of habeas corpus; in other words, arrests, not sustainable by the laws of war, or by any other law, except the extreme demands of public safety when ‘in cases of rebellion or invasion the public safety may require.’ The suspension of habeas corpus is a suspension of a right to inquire into the legality of an arrest; for, if it can be shown that the arrest was lawful, there is no need to suspend the habeas corpus. War had long before been recognized and legalized. Nothing is more certain in law than that military men, in time of war, are legally protected in doing the acts authorized by the laws of war. Such acts are in no sense unlawful. But this act of congress (section 4) provides an indemnity for acts done by the president, or under his authority, which was wholly unnecessary, unless it contemplated acts not defensible under the laws of war. The act neither reprobates nor prohibits. It contemplates the necessity, allows the act, and provides for it. One of two constructions is necessary. It refers only to such arrests as have been made under a suspension of habeas corpus, in which construction it does not apply to this case; or it provides for irregular arrests, without process or with defective process, which might, if habeas corpus was sustained, be discharged under it. But in no event does it contemplate the discharge of an arrest by habeas corpus, unless or until the steps there pointed out shall have been first taken, or the contingency there provided for shall have happened. If learned counsel, therefore, being themselves under the operation of this act, they defeat their application here, and are remitted to another mode of relief. If this act does not apply, it is outside of the case, and need not be further discussed. If it does apply, it is fatal to this petition. I understand learned counsel to admit that it does not apply here, and in this, I agree with him. It is an undoubted principle of public law, that persons captured or seized under the laws of war are prisoners of war. They may be guilty of civil offenses, punishable by the civil tribunals. Imprisonment under the laws of war does not discharge them from their offenses. They are or may be held until they can be brought to a legal trial in a time of restored tranquillity. Necessity forbids their running at large; humanity forbids to put them on trial at a time so unfavorable to the proceedings of pure and sacred justice. Vatt. Law Nat. 426. The act of March 3, 1863, is expressly limited, in its operation, to prisoners, who are held ‘otherwise than as prisoners of war.’ The president’s proclamation of September 24, 1862, suspending habeas corpus, and declaring martial law, is not referred to in the act of March 3, 1863, nor published in the regular edition of laws. I have no knowledge that it has been withdrawn or superseded, otherwise than as a matter of inference from the act of congress. If it remains in force, it ends this application. I choose rather not to rely upon it. There is no inference to be drawn from the act of congress against that part of it which proclaims martial law; but in the view I am urging of the principles of public law, such a proclamation can perform no office except to give publicity to a fact before existing. To whatever extent the fact of war brought into play the laws of war, those laws had their full force without a proclamation; to that extent a proclamation was proper, but unnecessary. Beyond that it was nugatory, and could not add one cubit to the stature of war. A proclamation of martial law is often confounded with, and considered equivalent to, a suspension of habeas corpus. But this is inaccurate. If the president had authority to issue such a proclamation, and has not rescinded it, nothing can be more clear than that congress had no power to rescind it. But I do not choose to embarrass the discussion by relying upon a document which there is plausible ground to suppose congress might not have considered in force.
Having cleared the field of argument from such chances of misapprehension and confusion as prudence required, I recur to the proposition advanced by learned counsel on *896 the other side, and which I had intended to advance myself, though scarcely necessary to be mentioned. A proceeding of habeas corpus is in the nature of a writ of error, to inquire into the legality of the commitment or arrest. If the application shows the arrest complained of was a lawful one, the court will go no further, it will not put a defendant to show, by his answer, what is already shown by the petition. On this I suppose I have the happiness to agree with learned counsel on the other side. I have also the happiness to agree with him that the right of habeas corpus has not, in this case, been suspended, but is to be treated as in full force, with neither more nor less respect than is habitually paid to it in courts of justice. I claim, then, that the facts before this court, show that the arrest of Clement L. Vallandigham, by Ambrose E. Burnside, a major general in the United States service, commanding in the department of the Ohio, was a legal and justifiable arrest. For the facts showing its legality I rely: 1. On the petition and affidavit of the prisoner. 2. On facts of current public history of which the court is bound to take judicial cognizance. Among the facts of public history I need recall but few. Unfortunately, the country is involved in dangers so many and so critical, that its people neither do nor can divert their thoughts to other topics. There is on foot an organized insurrection, holding by military force a large part of the United States, and controlling the political organization of at least twelve states of the Union. It has but into the field armies of such strength that the armies of the United States have not been able to overcome them. Battles of great magnitude are fought, and prisoners mutually captured and exchanged. In short, we have, for two years, been in a recognized state of civil war, on a scale large and destructive, almost beyond historical comparison. This insurrection claims to have so much power as to be beyond the means of the government to overcome, and to be entitled to be recognized by foreign nations as an independent power. Were it possible to doubt the imminence of the danger and extremity of peril from what we see around us, we should be warned of it by the admonitions of foreign governments holding the relations of friendly governments, and claiming to be impartial. They freely express the opinion that our danger is not merely extreme, but irremedial; that the constitution, and all hopes founded upon it, must perish. This insurrection has, for impulse, feelings and opinions growing out of the past civil history of the country. As a matter of course it cannot be, and as a matter of fact it is not, limited to places, or described by a geographical description. In some parts of the country it dominates society; in other parts it is dominated by the regular civil administration. We hear of no place so dark but that some weak prayers are uttered for the constitution; and of no place so bright but that lurking treason sometimes leaves its trails, or shows, through all disguises, its sinister unrest. The power and wants of the insurrection are not all or chiefly military. It needs not only food, clothing, arms, medicine, but it needs hope and sympathy. It needs moral aid to sustain it against reactionary tendencies. It needs argument to represent its origin and claims to respect favorably before the world. It needs information concerning the strength, disposition, and movements of government force. It needs held to paralyze and divide opinions among those who sustain the government, and needs help to hinder and embarrass its councils. It needs that troops should be withheld from government, and its financial credit shaken. It needs that government should lack confidence in itself, and become discouraged. It needs that an opinion should prevail in the world that the government is incapable of success and unworthy of sympathy. Who can help it in either particular I have named, can help it as effectually as by bearing arms for it. Wherever in the United States a wish is entertained to give such help, and such wish is carried to its appropriate act, there is the place of the insurrection. Since all these helps combine to make up the strength of the insurrection, war is necessarily made upon them all when made upon the insurrection. Since each one of the insurrectionary forces holds in check or neutralizes a corresponding government force, and since government is in such extremity as not safely to allow ant part of its forces to withdraw from the struggle, it has no recourse but to strike at whatever part of the insurrection it shall find exposed. All this is implied in war, and in this war with especial cogency. ‘If war be actually levied,--that is, if a body of men be actually assembled for the purpose of effecting by force a treasonable purpose,--all those who perform any part, however minute, or however remote from the scene of action, and who are actually leagued in the general conspiracy, are to be considered as traitors.’ [Ex parte Bollman] 4 Cranch [8 U. S.] 126.
The constitution being paralyzed and suspended to the extent described, we may notice the situation and condition of the state of Ohio, were the petition states the arrest to have been made. Geographically it is midway between east and west, bordered on the south by Virginia and Kentucky, both states occupied by contending armies, and over which the tide of war advances and recedes according as its fortunes incline to one side or the other. On the north is Lake Erie, over which England and America hold a divided sway. In the event of a war with England, on the very verge of which we have sometimes seemed, a contest for supremacy on that great lake would be inevitable. Such a war is one of the hopes of the insurrection, *897 and has been schemed for with amazing audacity. A military occupation of either line of railroad running through Ohio, from the river to the lake would sever the Northwestern from the Northeastern states. The population of the state is made up of all the conflicting elements now lighting the blaze of civil war in the country. The feelings of all are represented here. None of the extremes and none of the means are wanting. That these elements should be carrying on a bloody strife in the immediate neighborhood, and no strife be kindled here, is improbable in theory and untrue in fact. The insurrection in Ohio is dominated by the federal authorities, and operates in disguise, but it meets and receives constant attention. The arguments for insurrection made in South Carolina are openly repeated in Ohio. The charges there made against the government and those who administer it, as a provocation for rebellion, are openly made here, and with not much difference in the degree of animosity. The South Carolina orators, it is true, draw a different conclusion from their arguments and charges from that which is drawn here from the same arguments and charges. There, for the reasons stated, they declare eternal hostility to the Union; here, eternal fidelity to it. The means to accomplish these diverse results, however, are the same. In South Carolina they propose to overthrow Lincoln and his minions, in order to destroy the Union; here it is proposed, in order to save the Union. There and here each foot steps in the other’s track; the toes all point in the same way, but they claim to be traveling in opposite directions. It is not very long since the marshal of this district was obliged to call for military force to suppress a revolt in Noble county in this state; still later was a military force necessary to save Dayton from the ravages of a similar revolt. In numerous instances in Indiana military force has been necessary. These are all fingers of the same hand. Your honor does not forget how recently the records of this court were removed, in order to save them from the contingencies of an invasion by insurrectionary forces; nor how recently, by voluntary labor, the people of this city raised embankments and forts protected from the insurrection. Nor is your honor uninformed that these defenses are kept, day and night, in a state of preparation, armed and supported. This court is sitting, as it were, in garrison. We are deliberating under the protection of the guns of Newport and Covington. At various parts of the state are camps. The streets of our cities are patroled by military guards. Has our government nothing to do that it should vex itself and waste its means by these precautions, if not known to be necessary? An inference is unavoidably drawn of the importance of a given field of operations, by the officers placed in charge of it. General Wright, who was first sent to command this department, was a man eminent for military science and clear abilities. His undemonstrative habits and retiring manners prevented the high popular appreciation which he deserved. The next commander sent us is General Burnside, of Hatteras Inlet, of Roanoke Island, of Newbern, of South Mountain, of Antietam, of Fredericksburg; a general not inferior in ability, not second to any other in the affections of his countrymen. With him comes that famous army corps, young in organization, but already old in sacrifices and in glory. Next in command, for Ohio, they send us the very Bayard of American volunteers, whose cool heriosm at South Mountain was looked upon as an ample response to the high expectations formed of him from his accomplishments and previous services, and who crowned them all at Antietam creek, by performing there, with Ohio troops, trained under his own eye, a feat of arms fit to be compared with the far-famed passage of the Bridge of Lodi. If the government can afford such generals for the safe places, what can it afford to the dangerous places? Why are these men here? Have they, at any time, since the war began, sought any other but the place of danger? They are here,--they are sent here for war: to lay the same military hand upon this insurrection wherever they can find it, in small force or large force, before them or behind them, which they have laid upon it elsewhere. They are not here to cry peace, when there is no peace; not here to trifle with danger, or to be trifled with by it. They are patriot generals, commanding forces in the field in the presence of the enemy, constrained by their love of country, and in the fear of God only, to strike. Are they to fold their arms and sleep while the incitements to insurrection multiply around them, and until words shall find their way to appropriate acts? Are they to wait until the wires shall be cut, railroad tracks torn up, and this great base of supplies, this great thoroughfare for the transit of troops, this great centre and focus of conflicting elements, is in a blaze, before they can act? Must they wait until apprehended mischief shall become irremediable before they can attempt a remedy? Jefferson Davis would answer ‘Yes!’ Traitors and abettors of treason would everywhere answer ‘Yes!’ I seem to hear a solemn accord of voices rising from the graves of the founders of the constitution, saying ‘No!’ And I seem to hear the response of loyal and true friends of liberty everywhere swelling to a multitudinous and imperative ‘Amen!’ * * *
The petition exhibits and sets forth a copy of the charge under which he was arrested. It shows us exactly the ground of his arrest. By referring to the charge and specifications, we have before us the case. It is not a little remarkable that no part of the charge or specification is denied. It stands for the purpose of this inquiry, as admitted.
*898 Mr. Perry read the charge and specifications as published in another place.
It appears from this that he publicly addressed a large meeting of citizens. He was not expressing in secrecy and seclusion his private feelings or misgivings, but seeking publicity and influence. The occasion and circumstances show the purpose to have been to produce an effect on the public mind, to mould public feeling, to shape public action. In what direction? The charge says by expressing his sympathies for those in arms against the government of the United States, by declaring disloyal sentiments and opinions. He declared the war to be wicked and cruel, and unnecessary, and a war not waged for the preservation of the Union: a war for crushing out liberty and erecting a despotism. What is this but saying that those who fight against the United States are in the right, and that it would be cowardly and dishonorable not to fight against the United States? In what more plain or cogent language could he urge his audience themselves to take up arms against their government? If those who heard him could not be incited to fight against a government by persuading them it was making an unjust and cruel war to crush out liberty, how else could he expect to incite them? If he did not hope to persuade them to join their sympathies and efforts with the enemies of the United States, by convincing them that these enemies are in the right, fighting and suffering to prevent the overthrow of liberty, standing up against wickedness and cruelty, what must he have thought of his audience? What else but the legitimate result of his argument can we impute fairly as the object of his hopes? To whatever extent they believe him, they must be poor, dumb dogs not to rally, and rally at once, for the overthrow of their own government, and for the support of those who make war upon it. But he did not leave it to be inferred. He declared it to be a war for the enslavement of the whites and the freedom of the blacks. Which of the two was in his opinion, the greater outrage, he does not appear to have stated. It is one of the unmistakable marks of the insurrection, by which it can always be identified, that its declarations for liberty are for a selfish and brutal liberty, which includes the liberty of injuring and disregarding others. If his white audience were not willing to be enslaved, that is to say, not willing to endure the last and most degrading outrage possible to be inflicted on human nature, they must, so far as they believe him, resist their own government. If he himself believed what he said, he must take up arms to resist the government or stand a confessed poltroon. A public man, who believes that his government is guilty of the crimes he imputed, and will not take up arms against it, is guilty of unspeakable baseness. If his audience believed what he told them, they must have looked upon advice not to take up arms as insincere or contemptible. No public man, no private man, can make such charges, and decently claim not to mean war. All insurrections have their pretexts. The man who furnishes these is more guilty than the man who believes them and acts on them. If the statements of Vallandigham were true, the pretexts were ample, not merely as pretexts, but as justification of insurrection. They were more: they were incitements which it would be disgraceful to resist, and which human nature generally has no power to resist. The place where such things are done, is the place of insurrection, or there is not and cannot be a place of insurrection anywhere. If these laboratories of treason are to be kept in full blast, they will manufacture traitors faster than our armies can kill them. This cruel process finds no shelter under the plea of political discussion. Whatever might be said about ballots and elections, the legal inference is that it is intended to produce the results which would naturally flow from it. If the president, with all the army and navy, and his ‘minions,’ is at work to overthrow liberty and enslave the whites, every good man must fear to see that army victorious, and hail its disasters with joy. Every good man must strike to save himself from slavery now, while he can. The elections are far off, and may be too late. It cannot be claimed that the motive was to influence elections, because the argument does not fit that motive. It fits to insurrection, and that only. He pronounced general orders No. 38 to be a base usurpation, and invited his hearers to resist it. How resist it? How could they resist it, unless by doing what the order forbade to be done? What was there to be complained of, except by persons wishing to do, or to have done by others, the acts by that order prohibited? He invited them to resist the order. The order thus to be resisted prohibited the following acts, viz.: Acts for the benefit of the enemies of our country, such as carrying of secret mails, writing letters sent by secret mails; secret recruiting of soldiers for the enemy inside our lines; entering into agreements to pass our lines for the purpose of joining the enemy; the being concealed within our lines while in the service of the enemy; being improperly within our lines by persons who could give private information to the enemy; the harboring, protecting, concealing, feeding, clothing, or in any way aiding the enemies of our country; the habit of declaring sympathies for the enemy; threason. These are the things prohibited in order No. 38, which Mr. Vallandigham invited his audience to resist. ‘The sooner,’ he told them, ‘the people inform the minions of usurped power that they will not submit to such restrictions on their liberties, the better.’ ‘The minions’ here referred to were the commanding general of the department, and others charged with official duties under their own government. The ‘liberties’ not allowed to be restricted, were liberties to aid the enemies of the United *899 States. He declared his own purpose to do what he could to defeat the attempt now being made to build up a monarchy upon the ruins of our free government. This resistance could mean nothing but resistance to his own government, which he had before declared to be making attempts to enslave the whites. These appeals to that large public meeting are charged to have been made ‘for the purpose of weakening the power of his own government in his efforts to suppress an unlawful rebellion,’ all of which opinions and sentiments ‘he well knew did aid, comfort, and encourage those in arms against the government, and could but induce in his hearers a distrust of their own government, and sympathy for those in arms against it, and a disposition to resist the laws of the land.’ Not one syllable of all this is denied, and yet the arrest is complained of as unconstitutional. It must be so apparent as to need no further demonstration, that an arrest of some kind had become necessary for the preservation of public decency. Either General Burnside and his soldiers should have been arrested, or Vallandigham. The only open question is, which was the proper party, and whether a mistake was made as to the man. If Vallandigham was right, General Burnside and every other officer of the army or navy, every member of the cabinet, even the president himself, should be forthwith put under arrest. The federal congress, which voted supplies for the army engaged in such a foray on the rights and interests of mankind, ought to be promptly dispersed. On the other hand, if the president and the government of United States are not all criminals, if our generals and soldiers are not all minions and pimps of a wicked scheme to enslave the people, Vallandigham ought to have been arrested. The acts which General Burnside was sent here to perform, and the acts of Vallandigham, considered as separate acts, or as lines of action, could not possibly go on together. They were, in their essence and nature, incompatible things, and mutually destructive of each other. If General Burnside might have arrested Jefferson Davis, and held him a prisoner, why not Clement L. Vallandigham? If we suppose the constitution was intended to authorize two such incompatible and mutually destructive lines of action at the same time, we impute an incredible absurdity. If it authorizes the drafting of one part of the population, the organizing of armies, and marching to battle, to suppress insurrection, it cannot at the same time authorize the other part of the population to thwart, defeat, and annul their efforts. On the other hand, if it authorize a portion of the people to attack and resist, and discredit the government, it cannot require the other portion to make war to defeat them. If the object of the constitution was to provide for its own destruction and protect its enemies, the arrest of Vallandigham was a mistake: Burnside was the man. But if the object was to provide for the safety of the constitution, and protect its friends, no mistake has been made, Vallandigham is the man to be arrested. It never could have been intended to allow them both to take the field at the same time.
It is claimed that, since Vallandigham was not a military man, this arrest should have been made by the civil authorities. I understand the argument of learned counsel to be placed on this ground. Beyond or in addition to the ordinary arrests by civil process, none other are allowed under the constitution, except such as are authorized by military law. Military law, he shows us, consists chiefly in the rules and articles of war, and applies only to persons engaged in the military service of the government. The objection, therefore, is not one which relates to time, place, or circumstance. It denies authority to make such arrests at any time, in any place, or under any circumstances. I am not aware that language can state it more broadly than it was stated by learned counsel. Any arrest or capture made by the army of persons not in the military service, or so connected with it as to be subject to the rules of military law, is, he argues, an unlawful arrest. All such arrests must be discharged on habeas corpus, unless it happens that habeas corpus has been suspended. A state of war, civil or other, does not, of itself, he thinks, suspend habeas corpus. It is a part of his theory that habeas corpus has not yet been suspended. The unavoidable result of this argument is, if it be the law, that no prisoner has been taken during the war, who could not have had his discharge on habeas corpus. The prisoners taken by General Burnside at Roanoke Island, and by General Grant at Fort Donelson, were dischargeable on habeas corpus. General Banks can make no such arrests in Louisiana; Rosecrans none in Tennessee; Grant none in Mississippi; Hooker none in Virginia; Hunter none in South Carolina. Most of the prisoners seized by these generals are citizens of the United States, not engaged in the military or naval service thereof, nor called into actual service as a part of the militia. They could copy the form of the present petition, and conscientiously make oath to every material fact stated in it. It may be said that in those cases the prisoners taken were taken in the act of war, flagrante delicto. But if there was no authority to take them, under any circumstances, the fact supposed can make no difference. In order to rest a distinction on the fact of flagrant war, where it exists, it must be admitted that in some cases the authority does exist, which being admitted, the whole proposition goes into collapse and disappears. The inquiry then comes down to an inquiry as to time, place, and circumstance, which is a very distinct and different inquiry. In truth, however, much of the supposed difference in circumstances does not exist. As generals commanding different armies of the *900 United States, or in the field for purposes of war, and engaged in actual war, the authority conferred on them by the constitution must be the same. One may be limited by special instructions, another not; but without reference to such limitation, their general authority and duties as generals must be equal. The exigencies of war may press sometimes more heavily on one, sometimes on another. But if this is allowed to make a difference in the general authority exercised, the question is reduced to a question of circumstances, which learned counsel by no means admits. Nor does his proposition allow of an exception, if it happen anywhere that the civil administration, and the judiciary as a part of it, be forcibly obstructed and overthrown. This again would reduce it to a question of circumstances. His argument is that this kind of arrest is absolutely forbidden by the constitution; and being so forbidden, of course, no circumstance can make it lawful. The denial is far-reaching and fundamental. It follows, as a necessary corollary from the proposition, that, if at any time, in any part of the United States, an insurrection can make so much head as to obstruct or overthrow civil administration, it will have gained impunity. If those engaged in it may not be arrested by the army sent against it, they may not be shot. If they cannot be persuaded, nothing can be done. The application of restraint is imprisonment; and unless military imprisonment be allowed, no imprisonment can take place. For in the case supposed, the civil administration is no longer practicable. It may be said that in such instances habeas corpus must be suspended. This does not meet the argument. We are inquiring what arrests may be lawfully made. Suspension of habeas corpus makes no arrest lawful which was before unlawful. It merely suspends one remedy for unlawful arrests. It does not necessarily suspend other remedies, such as actions for false imprisonment and trespass. These are usually provided for by acts of indemnity which are not needed for lawful arrests. In England, these acts of indemnity may be passed by parliament after the war is over; for there is no constitutional prohibition against ex post facto laws. But here an indemnity act must pass before the imprisonment, to be available as an indemnity. The question now under consideration is, what acts are lawful and need no indemnity? What need can there be to suspend habeas corpus, when the civil bribunals, which alone should issue such writs, are already overthrown? The question is, whether every act of battle or of war by our soldiers against an insurrectionary force, is a civil trespass, and needs an act of indemnity? For if our soldiers may kill their enemies, they may capture them. Reduced to its last analysis, it is a question whether it is lawful, by force, to put down an unlawful and forcible opposition to the civil authorities; whether it is an unconstitutional act to enforce the constitution. If the gentleman’s proposition be true, must it not be also true that every forcible attempt to overthrow the constitution has the guarantee of that instrument to protect it from harm and insure its success? It is attacked by force, and its friends may not strike without committing trespass.
Let us examine the grounds on which he founds his proposition. He cites several well-known provisions of the constitution: ‘The trial of crimes, except in cases of impeachment shall be by jury; and such trial shall be held in the state where the said crime shall have been committed.’ * * * ‘The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated; and no warrants shall issue but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.’ * * * ‘No person shall be held to answer for a capital or other infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service, in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled, in any criminal case, to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation’ [Const. Amend. art. 5]. And some others. These are parts of the constitution, very valuable parts, but not the only ones. If the constitution had provided no means of enforcing the rights here mentioned, it would have been very ineffectual to secure them. Its guarantees of these rights might or might not have been worth the paper on which they were written. The argument of learned counsel leaves the constitution precisely where the framers of it would have left it, if they had put in it no other causes but these. I ask him what is to be done if it happen that by civil war the courts are overthrown, juries dispersed, and, in the state where the crime was committed, all civil administration is rendered impossible? I ask him what is to be done if it happen that throughout any large portion of the United States, the constitution, and all the officers under it, all its recognized legal processes and tribunals, be forcibly overcome and defied; and if those proclaiming the protection of the constitution, by unlawful violence there, not allowed to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures? What if the enemies of the constitution, in arms against its authority, do attack and seize its friends without probable cause, without charges, upon oath, and without warrant? What if they do deprive them of life, liberty, or property without *901 due process of law, and take private property for public use without due compensation? In a word, what if the enemies of the constitution suppress, expel, or demolish every vestige of constitutional administration, and substitute therefor war,--war by large armies, war by small bands, war by individual assassinations, hatreds, revenges, physical force, war everywhere, so that not one shred or patch of the constitution remains in that whole region? The question to be answered here is, what is to be done in such a state of affairs? I have listened to the argument of my learned friend with respectful attention. I have wandered with him over many fine fields of declamation, all about liberty and the constitution, but I find no answer. Unfortunately the condition of the country urgently requires an answer. I find that answer in other parts of the constitution. The instrument would have been nugatory, and idle and perhaps cheerful composition, but wholly unworthy of its framers, if it could furnish no answer. If it could furnish no answer, we should find ourselves involved in a situation unprovided for, never contemplated as possible, and one which would be a law unto itself. Being without law for the situation, we should rightfully act upon the necessity before us. But my argument is that the constitution does provide an answer,--a well-expressed and adequate answer. That answer, in substance, is, to meet war with war. I refuse to be dezzled by glittering fragments of a broken constitution, or to follow their illusory lights into a bottomless bog of anarchy. On behalf of the people I demand the whole constitution. On that rock we found our liberty, and the gates of hell shall not prevail against it. It is not necessary to repeat here the numerous passages of the constitution intended to establish justice and secure liberty. They do not purport to create, but to guard and secure. Justice existed before, but the concern of the framers of the constitution was to ‘establish’ it. Domestic tranquility was an object of general desire, yet government was needed to ‘insure’ it. The common defense might be, indeed, had been, conducted by them successfully without a constitution, but they deemed it expedient to ‘provide’ for it. Liberty had been, by them, successfully asserted, but they felt the necessity of a government to ‘secure’ its blessings. Therefore, they did ‘ordain and establish this constitution of the United States of America.’ Its framers understood perfectly that, without it, liberty might exist, but it would have no establishment or security. They would have wasted their many weary years with profitless endeavor to behold at last the object of desire ‘speed away on cherub pinions,--the guide of homeless winds and playmate of the waves.’ How, then, did they secure liberty? In the order of securities we find, first, certain declaratory clauses. It is one step toward establishing and securing rights to agree upon them and declare them. The citizens of each state shall be entitled to all the privileges and immunities of the several states. Private property shall not be taken for public use without due compensation. No person shall be deprived of life, liberty, or property, without due process of law; and other clauses before quoted. It is observable that in these declarations are embraced rights of a different grade,--rights called absolute and indefeasible, and rights merely conventional or secondary. But they are all declared with the same solemnity, and secured by the same guarantees. Materials of different degrees of solidity and costiliness were fitted to their respective places in the edifice. The whole structure was necessary for the purpose contemplated, and all its parts and details were necessary to the structure. They do not tell us which of them could be taken away without danger to all. It was necessary to go further and provide for the enforcement of these declarations. The first step was to provide for electing a chief executive officer, to preside over and enforce the laws. Without him the whole machinery would fail. Except in the manner there provided, there can be no president elected, but an election of president implies other things. When elected, he is to perform duties and exercise his faculties. Another practical security is provided by ordaining the election of a legislative body, and prescribing its functions, and declaring ‘that this constitution, and the laws of the United States which shall be made in pursuance thereof, and all treaties made or which shall be made under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the constitution or laws of any state to the contrary notwithstanding.’ But, further than this, the constitution provides for courts, judges, and marshals, to adjudicate and enforce the laws. It does not stop there. In all ages of the world men have been found not obedient to the judicial decisions; sometimes numerous and strong enough to overthrow and defy all the processes of civil administration. The constitution does not fail to provide for such an emergency. It crowns the guarantees before offered by providing for an adequate physical force to overcome come all opposition. It speaks of a well-regulated militia as necessary for the security of a free state. It provides authority to ‘raise and support armies, to provide and maintain a navy, and to declare war.’ It provides for organizing, arming, and disciplining the militia; for calling forth the militia to execute the laws of the Union, suppress insurrections, and repel invasions. It makes the president ‘commander-in-chief of the army and navy of the United States, and of the militia of the several states when called into the actual service of the United States.’ Thus placing at his disposal the *902 entire resources of the country, it requires of him, before entering upon his office, to invoke the sanction of Almighty God, and clothe himself with an oath: ‘I do solemnly swear (or affirm) that I will faithfully execute the office of president of the United States, and will, to the best of my ability, preserve, protect, and defend the constitution of the United States.’ The president is no longer a free man in the chimerical sense of freedom which we hear so much of. But he is not less free than other citizens who are all bound to support the constitution. It is not one of the liberties secured by the constitution,--to select some particular right there guaranteed, to maintain it as distinct from and in opposition to the rest, or to hold fast to that one and let go the rest. Each holds his rights upon one ineradicable condition,--that he shall, to the extent of his ability, maintain and defend every part of the constitution. He can not throw off his allegiance, defy the government, make war upon it, and, at the same time, claim its protection. When he lifts his arm against the constitution, the arm may be cut off, without giving him a right to complain of cruel and unusual punishments. When he lifts his voice against the liberties of his countrymen, his voice may be silenced in the interests of freedom of speech. When he arms himself to assail the defenders of the constitution, those arms may be taken from him, in the interest of the general right to bear arms. When he makes of his house a shelter for traitors, and barricades it from the approach of patriots, it may be broken open and searched in the general interest of freedom from unreasonable searches and seizures.
In the civil administration different remedies are applied, each after its kind. A writ of capias seizes the body, but it does not violate the constitutional guarantees of personal liberty; an attachment lays hold of goods, but does not violate property rights; a replevin breaks open houses, but does not conflict with the right to be protected from unreasonable searches and seizures. The common law furnishes redress in some instances; equity in others; maritime law in others. Each of these is so far exclusive as, when properly appealed to, not to be interfered with by any other; and, while in progress, to be governed exclusively by its own rules. War is the last resort, but when properly appealed to, its processes are due and reasonable processes, and, like the rest, must be allowed to work out results exclusively by its own rules. ‘The body of a nation cannot, then, abandon a province, a town, or even a single individual who is part of it, unless compelled to it by necessity, or indispensably obliged to it by the strongest reasons, founded on the public safety. Since, then, a nation is obliged to preserve itself, it has a right to everything necessary for its preservation. For the law of nations gives us a right to everything without which we cannot fulfill our obligations; otherwise, it would oblige us to do impossibilities, or rather, would contradict itself in prescribing us a duty, and, at the same time, debarring us of the only means of fulfilling it.’ * * * ‘A nation or state has a right to everything that can help to ward off imminent danger, and keep at a distance whatever is capable of causing its ruin, and that from the very same reasons that establish its right to the things necessary to its preservation.’ Vatt. Law Nat. 5, 6. The right of nations here described has been fully preserved to the United States by their constitution, so far as the question under debate is affected. The power to make war is given without limitations. So far as war may be a means of preservation, or for warding off imminent danger, and keeping at a distance whatever is capable of causing its ruin, the nation is safe. The rights of war are as sacredly guaranteed as trial by jury, or personal liberty, or any other right whatever. The president cannot claim to have preserved, protected, and defended the constitution, to the best of his ability, until he shall have used all the ability given him by the utmost rights of war. He who declares he is willing to support the war, provided it creates no disturbance, only declares he is willing to support it, provided it shall be so conducted as to be really something else, and not war. The constitution does not define the meaning of habeas corpus, or trial by jury, or liberty, or war. They were to be ascertained elsewhere. I have before shown a definition of civil liberty. One of its conditions is an abridgement of natural liberty. Liberty was not abridged of the right to call in war to her defense, but she could not be endowed with a capacity for impossibilities. She could not require of human nature that which would be impossible to God himself,--repose and commotion, peace and war, at the same time. War could do little for Liberty, if she should hang forever sobbing on his neck, pinioning his arms, and holding him back from being War indeed. No! in this solemn time of domestic sorrow and of public peril, it is little better than sacrilege thus to potter with the meaning of words. By liberty was intended such liberty as was possible to mankind. By war was intended not a hollow pretext of war, but a lifting high of the red right hand of avenging justice. A thorough, condign, effectual laying hold of enemies, a summary breaking-up of their hiding places, and a terrifying deathly pursuit, until they shall cease to exist, or cease to be enemies. In Scott’s Military Dictionary, a recent work, which, he says, was not prepared in view of existing disturbances, he states the following rule (page 273): ‘With regard to the requisition of military aid by the civil magistrate, the rule seems to be that when once the magistrate has charged the military officer with the duty of suppressing a riot, the execution of that duty is wholly confided to the judgment and skill of the military *903 officer, who thenceforward acts independently of the magistrate until the service required is fully performed. The magistrate cannot dictate to the officer the mode of executing the duty; and an officer would desert his duty if he submitted to receive any such orders from the magistrate. Neither is it necessary for the magistrate to accompany the officer in the execution of his duty. The learning on these points may be gathered from the charge of Mr. Justice Littledale, to the jury, in the trial of the mayor of Bristol, for breach of duty in not suppressing the riots in that city in 1831.’
I have spoken of military law, which is claimed, by learned counsel on the other side, to be a law for military men. This law is often mistaken for or confounded with martial law, but the terms are very far from convertible. Martial law is often defined as no law at all; but this definition is rather an objurgation against than a description of it. I venture to define martial law to be the rule of action adopted by all nations, and at all periods of the world, by which, in times of war, to guard against dangers that often arise, and by reason of the necessity of it, such discretion is given to the military commander, measured by the requirements of the situation, as shall insure to his force the best chances of success. It is that established practice, that common law of nations, by which, under the compulsion of right reason, when they have called an army into the field for war, and confided to it the safety of the commonwealth, they allow it, without hindrance or interruption, to perform its work. Counsel for petitioner reads to us many authorities to show that military law applies only to military men. Beyond this his argument is comprised either in a broad denial that martial law means anything more than is intended by military law; or, if it does, an equally broad denial that it does or can exist in Great Britain or the United States. His limitation of the military law, so called, appears to me rather more narrow than the authorities justify; but for the purposes of this argument, I have no controversy with him there. Let him take for granted all that I understand him to claim, as to the rule concerning military law. The questions remain whether martial law, or the laws of war, or the rights of war--phrases interchangeably used by the supreme court of the United States in discussing the theme, and by writers--mean more than military law; and if they mean more, whether they can exist in Great Britain or the United States. On both these questions counsel for petitioner takes the negative. If I can show him to be wrong here, I shall have defeated his whole argument. For, although his argument is not confined to these inquiries, all other parts of it depend upon them. I have already cited Vattel to how that the same rules or laws of war apply, or ought to apply, to civil as to foreign war. The only doubt is, whether persons in insurrection against their own government, can rightfully claim the same treatment applied in mitigation of the rigors of war to foreign enemies. The most merciful rule is the one to which Vattel inclines for reasons of expediency and humanity. It is the rule applied by our own government in this war. It is quite unnecessary to cite authorities to show that in foreign war the authority of a general is not limited to the military force under his command. During the Peninsular war, Wellington governed Spain and Portugal, and afterward a part of France, in the exercise of well-known and commonly-acknowledged rights of war. In our war with Mexico, General Scott promulgated and enforced a plan for the government of Mexico. Some debate was raised at home whether the constitution conferred so much power on a general. It was acquiesced in and approved. There could be no doubt of the authority to make war, and this was a necessary incident. Under the same rule, Rosecrans controlled civil administration in Tennessee, and Banks in Louisiana, and Curtis did in Missouri. Doubtless persons captured in flagrant acts of treason may be hung. As the greater includes the less, the right to hang implies the right to inflict the lesser evil. They are, therefore, allowed to be treated as prisoners of war. I am now speaking of the existence of rights of war, laws of war, or martial law, and showing them not to be limited to military men, and to be much more comprehensive than military law,--indeed, entirely distinct and different from it. I am now making the application to Vallandigham. That is a question of circumstances. I am replying to the argument which denies the existence or application of such a law under any circumstances.
To maintain his denials counsel cites many English authorities,--among them Sir Matthew Hale,--and he claims, as the result of those authorities, that martial law has been definitively abandoned and prohibited in England. These authorities do, some of them, show that certain gross abuses, which were practiced by the Stuarts in England, under the pretext and name of martial law, but which found as little justification under martial law as under any other, have been prohibited. Perhaps he could show, with smaller research, that measures had been taken to prevent a repetition of the infamous and bloody assizes of Jefferies; but this would not go very far to discredit trial by jury. Trial by jury yet exists in England; and martial law is applied there as often as occasion requires. If anything may be fairly assailed by holding it responsible for abuses, the judiciary would be one of the first institutions of government to fall. Looking over the history of past ages, it is apparent that military men would have some difficulty in establishing a claim to a leadership in the abuses inflicted on mankind. Most of the historical struggles for liberty *904 have resulted from a real and natural antagonism between peoples and their rulers; rulers claiming, by some heritable superiority, to govern, and people feeling the government mainly in its oppressions. Whether judges or military men are most responsible for the cruelties inflicted in such struggles may be doubted. From a somewhat patient reading of law books, I am, however, prepared to admit that judges have felt much less alarm and indignation at stretches of power practiced by themselves, than they have felt at the assumption of undue power by military men. If there were no history except what we find in law books, judges would have a decided advantage over generals. There are, also, specimens of popular forensic eloquence, originally delivered as the voice of the people against despotic governments (some of them quite out of hearing), which never lose their attractions. We rather like to hear them launched against our old government; that is to say, ourselves. The difficulty of playing both people and tyrant at the same time is scarcely appreciable in these popular amusements.
I am relieved from stating my own conclusions concerning the numerous English authorities cited, by finding an examination of them, and an opinion concerning them, by Mr. Attorney General Cushing. 8 Op. Attys. Gen. U. S. p. 365. The attorney general, after remarking upon English authorities, sums up: ‘In fine, the common-law authorities and commentators afford no clue to what martial law, as understood in England, really is; but much light is thrown upon the subject by debates in parliament, and by facts in the executive action of government.’ This is a report to his own government by one of the most learned and laborious attorneys general the United States ever had. He quotes Sir Matthew Hale also: ‘Martial law is not in truth and reality, a law, but something indulged rather than allowed as a law: the necessity of government, order, discipline in the army, is that only which gives these laws a countenance.’ Hale, Com. Law, p. 39. Mr. Attorney General says: ‘This proposition is a mere composite blunder, a total misapprehension of the matter. It confounds martial law and law military; it ascribes to the former the uses of the latter; it erroneously assumes that the government of a body of troops is a necessity more than that of a body of civilians, or citizens. It confounds and confuses all the relations of the subject, and is an apt illustration of the incompleteness of the notions of the common-law jurists of England in regard to matters not comprehended in that limited branch of legal science.’ ‘Even at a later day, in England, when some glimmerings of light on the subject began to appear, the nature of the martial-law remained without accurate appreciation in Westminster Hall.’ He cites the case of Grant v. Gould, 2 H. B. 98, decided by Lord Loughborough, who said: ‘The essence of martial law consists in its being a jurisdiction over all military persons, in all circumstances.’ And because military men are triable for many offenses, and have their personal rights, for the most part, regulated by law, ‘Therefore,’ he says, ‘it is totally inaccurate to state martial law as having any place whatever in the realm of Great Britain.’ Mr. Attorney General says, ‘This is totally inaccurate,’ and explains why. Mr. Attorney General then quotes 11 Steph. Comm. p. 602, note. ‘Martial law,’ says Stephens, ‘may be defined as the law, whatever it may be, which is imposed by military power; and has no place in the institutions of this country (England), unless the articles of war, established under the acts just mentioned, be considered as of that character.’ The attorney general proceeds: ‘Here again is pitiable confusion; for the articles of war are not a law ‘imposed by the military power,’ nor is martial law confined in its origin to the military power as the source of its existence.’ The confusion among English lawyers, remarked by the attorney general, will account, probably, for some inconsistencies of expression among English statesmen on this subject, though the action of English statesmen is sufficiently clear and consistent. The question whether martial law has ‘a place in the realm of Great Britain,’ as denied by Lord Loughborough, or ‘a place in the institutions of England,’ as denied by Mr. Stephens, is purely a question of historical fact, and history in against them. Nor is the question open to doubt. Martial law, such as I claim, has been unquestionably adopted and enforced in Great Britain and her provinces as often as any occasion has been felt for it. I may here dismiss the English authorities.
Mr. Attorney General Cushing, in his opinion, makes a most learned examination of the topic, and says: ‘Looking into the legislation of other countries, we shall find all the legal relations of this subject thoroughly explained, so as to furnish to us ideas at least, if not analogies, by means of which to appreciate some of its legal relations in the United States.’ [8 Op. Attys. Gen. U. S. p. 370.] These legal relations appear to be better defined in France than elsewhere. Three conditions or states are there provided for: 1. Peace. In the state of peace, all military men are subject to the law military, leaving the civil authority untouched, in its own sphere, to govern all persons, whether civil or military, in class. 2. The state of war. When it exists, the military authority may have to take precedence of the civil authority, which, nevertheless, is not deprived of its ordinary attributes, but, in order to exercise them, must, of necessity, enter into concert with the military commander. 3. The state of siege. When it exists, all the local authority passes to the military commander, who exercises it in his own person, or delegates it, if he please, to the civil magistrates, *905 to be exercised by them under his orders. The civil law is suspended for the time being, or, at least, made subordinate, and its place is taken by martial law, under the supreme, if not direct administration of the military power. ‘The state of siege may exist in a city, or in a district of country, either by reason of the same being actually besieged or invested by a hostile force, or by reason of domestic insurrection.’ Of these different stages, Mr. Cushing concludes, the state of siege is equivalent to the proclamation of martial law in England and the United States. I remark upon this, that these distinctions, after all, between a state of war and a state of siege, are not very valuable. Martial law is a thing of necessity, and is limited by the necessity, so that the less urgent the necessity, the less extensive the power. It places in the hands of the general a discretion, as discretion is placed sometimes in the hands of judges and chancellors. It is said that martial law is no law; and it is said that equity is the length of the chancellor’s foot. But the chancellor, like the general, is required to exercise a ‘sound discretion,’ a ‘reasonable discretion,’ a ‘wise discretion, in view of all the circumstances.’ The New American Cyclopedia says: ‘Martial law is often confounded with military law; but these terms are by no means convertible.’ Speaking of martial law, it says: ‘It proceeds directly from the military power which has now become supreme. Yet, remotely and indirectly, martial law expresses the will of the people.’ ‘Martial law has often been confounded with military law, but the two are very different. Military law, with us, consists of the ‘rules and articles of war,’ and other statutory provisions for the government of military persons, to which may be added the unwritten or common law of the ‘usage and custom of military service.’ It exists equally in peace and in war, and is as fixed and definite in its provisions as the admiralty, ecclesiastical, or any other branch of law, and is equally with them, a part of the general law of the land. But, in the words of Chancellor Kent, ‘martial law is quite a distinct thing.’ It exists only in the time of war, and originates in military necessity. It derives no authority from the civil law (using the term in its more general sense), nor assistance from the civil tribunals, for it overrules, suspends, and replaces both. It is, from its very nature, an arbitrary power, and ‘extends to all the inhabitants (whether civil or military) of the district where it is in force.’ It has been used in all countries, and by all governments, and it is as necessary to the sovereignty of a state as the power to declare and make war. The right to declare, apply, and enforce martial law, is one of the sovereign powers, and resides in the governing authority of the state, and depends upon the constitution of the state, whether restrictions and rules are to be adopted for its application, or whether it is to be exercised according to the exigencies which call it into existence. But even when left unrestricted by constitutional or statutory law, like the power of a civil court to punish contempts, it must be exercised with due moderation and justice; and, as ‘paramount necessity’ alone can call it into existence, so must its exercise be limited to such times and places as this necessity may require; and, moreover, it must be governed by the rules of general public law, as applied to a state of war. It, therefore, cannot be despotically or arbitrarily exercised, any more than any other belligerent right can be so exercised.’ Atty. Gen. Cushing, 8 Op. Attys. Gen. U. S. p. 365 et seq.; Wolfius, Jus Gentium, § 863; Gro. De Jure B. lib. 2, cap. 8; Kluber, Droit des Gens, § 255; O’Bri. Mil. Law, p. 28. Halleck, Int. Law, 373. ‘Martial law, then, is that military rule and authority which exists in time of war, and is conferred by the laws of war in relation to persons and things, under and within the scope of active military operations in carrying on the war, and which extinguishes or suspends civil rights, and the remedies founded upon them, for the time being, so far as it may appear to be necessary in order to the full accomplishment of the purpose of the war,--the party who exercises it being liable in an action for any abuse of the authority thus conferred. It is the application of military government--the government of force--to persons and property within the scope of it, according to the laws and usages of war, to the exclusion of the municipal government, in all respects where the latter would impair the efficiency of military law or military action.’ Benet, Courts-Martial, 14. ‘We remark, in conclusion, that the right to declare, apply, and exercise martial law is one of the rights of sovereignty, and is as essential to the existence of a state as is the right to declare or carry on war. It is one of the incidents of war; and, like the power to take human life in battle, results directly and immediately from the fact that war legally exists. It is a power inherent in every government, and must be regarded and recognized by all other governments; but the question of the authority of any particular functionary to exercise this power, is a matter to be determined by local and not by international law. Like a declaration of a siege or blockade, the power of the officer who makes it is to be presumed until disavowed, and neutrals who attempt to act in derogation of that authority, do so at their peril.’ Halleck, Int. Law, 380. ‘The English common-law authorities and commentators generally confound martial with military law, and, consequently, throw very little light upon the subject, considered as a domestic fact; and, in parliamentary debates, it has usually been discussed as a fact, rather than as forming any part of their system of jurisprudence. Nevertheless, there are numerous instances in which martial law has been declared and enforced, in time of *906 rebellion and insurrection, not only in India and British colonial possessions, but also in England and Ireland. It seems that no act of parliament is required to precede such declaration, although it is usually followed by an act of indemnity, when the disturbances which call it forth are at an end, in order to give constitutional existence to the fact of martial law.’ Id. 374.
I will now ask attention to two cases discussed in the supreme court of the United States, which give the sanction of that court to the doctrine that I am endeavoring to sustain.
The constitution provides that private property shall not be taken for public use without due compensation. Yet a general, going to war, could not post his sentinels without committing what would be, in peace, a trespass. Every mile of his march, with ordinary military precautions, every encampment, would be a violation of law. In Mitchell v. Harmony, 13 How. [54 U. S.] 115, the plaintiff below had sued an officer of the army of the United States for taking his property during the war with Mexico. It was taken on error to the supreme court of the United States, on exceptions to the charge of the circuit judge to the jury. Chief Justice Taney said (page 133): ‘Upon these two grounds of defense, the circuit court instructed the jury that defendant might lawfully take possession of the goods of the plaintiff, to prevent them from falling into the hands of the public enemy; but, in order to justify the seizure, the danger must be immediate and impending, and not remote or contingent. And that he might also take them for public uses, and impress them into the public service, in case of an immediate and pressing danger or urgent necessity existing at the time, but not otherwise.’ The charge, as thus stated, was sustained. Again, on page 134, the chief justice said: ‘There are, without doubt, occasions in which private property may lawfully be taken possession of or destroyed, to prevent it from falling into the hands of the public enemy; and also where a military officer, charged with a particular duty, may impress private property into the public service, or take it for public use. Unquestionably, in such cases, the government is bound to make full compensation to the owner; but the officer is not a trespasser.’ * * * ‘It is the emergency that gives the right, and the emergency must be shown to exist before the taking can be justified. In deciding upon this necessity, however, the state of the facts, as they appeared to the officer, at the time he acted, must govern the decision; for he must necessarily act upon the information of others as well as his own observation.’ Mr. Justice Daniel delivered a dissenting opinion on other points. But on this point he said (page 139): ‘The principle itself, if properly applied, of the right to take property to prevent it from falling into the hands of the enemy, is undisputed.’ And again (same page): ‘I have no doubt of the right of a military officer, in a case of extreme necessity, for the safety of the government or army, to take private property for the public service.’ Again (page 140): ‘The safety of the country is paramount, and the rights of the individual must yield in case of extreme necessity.’ Observe that this is not placed on the ground that, in extreme necessity, the constitution is suspended, and the laws properly broken; but it is held to be a lawful act. They do not look upon it as trespass, excusable from great urgency, but they declare it not to be a trespass. The officer is clothed with a lawful right to do it. But this property right is guarded by the same sanctions in the constitution with the right of personal liberty. Inasmuch as a person may give the enemy more help, or expose our own army to greater dangers, than property could, the reason is more cogent when applied to persons.
During the celebrated Dorr rebellion, the legislature of Rhode Island passed an act declaring the state under martial law. One Martin Luther being charged with aiding and abetting the rebellion, his house was broken open and entered, and he was arrested, or, in the language of the petition in this case, he was ‘seized by overpowering numbers.’ He brought an action against the parties who made the arrest, in trespass quare clausum fregit. They justified under the statute declaring martial law. It appears that there was not, in that case, more than in this, ‘any warrant issued upon probable cause, supported by oath or affirmation.’ In that action martial law, as a topic, came under discussion in the supreme court of the United States. Luther v. Borden, 7 How. [48 U. S.] 1. Chief Justice Taney delivered the opinion of the court, from which I shall presently read. But, before doing so, I propose to read from the dissenting opinion of Mr. Justice Woodbury, and to invite the attention of learned counsel on the other side to his descriptions of martial law, and the distinction he made between what is called military law and martial law. [FN6]
FN6 From pamphlet report by Rickey & Carroll, Cincinnati, Ohio, 1863.
Mr. Perry here commented at length upon the opinion of Mr. Justice Woodbury, criticizing severely his definitions and distinctions.
[FN7]I may now turn to the opinion of the court as delivered by Chief Justice Taney (page 45): ‘The remaining question,’ says the chief justice, ‘is whether the defendants, acting under military orders, issued under the authority of the government, were justified in breaking and entering the plaintiff’s house. In relation to the act of the legislature declaring martial law, it is not necessary, in the case before us, to inquire to what extent, or under what circumstances, that power may be exercised by a state. Unquestionably a military government, established as the *907 permanent government of a state, would not be a republican government, and it would be the duty of congress to overthrow it. But the law of Rhode Island evidently contemplated no such government. It was intended merely for the crisis, and to meet the peril in which the existing government was placed by the armed resistance to its authority. It was so understood and construed by the state authorities, and, unquestionably, a state may use its military power to put down an armed insurrection too strong to be controlled by the civil authority. The power is essential to the existence of every government, essential to the preservation of order and free institutions, and is as necessary to the states of this Union as to any other government. The state itself must determine what degree of force the crisis demands. And if the government of Rhode Island deemed the armed opposition so formidable, and so ramified throughout the state, as to require the use of its military force, and the declaration of martial law, we see no ground upon which this court can question its authority. It was a state of war; and the established government resorted to the rights and usages of war to maintain itself, and to overcome the unlawful opposition. And, in that state of things, the officers engaged in its military service might lawfully arrest any one who, from the information before them, they had reasonable grounds to believe was engaged in the insurrection, and might order a house to be forcibly entered and searched, when there were reasonable grounds for supposing he might be there concealed. Without power to do this, martial law and the military array of the government would be mere parade, and rather encourage attack than repel it. No more force, however, can be used than is necessary to accomplish the object. And if the power is used for purposes of oppression, or any injury willfully done to person or property, the party by whom, or by whose order, it is committed, would undoubtedly be answerable.’ ‘We forbear to remark upon the cases referred to in the argument, in relation to the commissions anciently issued by the kings of England to commissioners to proceed against certain descriptions of persons, in certain places, by the law martial. These commissions were issued by the king at his pleasure, without the concurrence or authority of parliament, and were often abused for the most despotic and oppressive purposes. They were used before the regal power of England was well defined, and were finally abolished and prohibited by the petition of right, in the reign of Charles the First. But they bear no analogy in any respect to the declaration of martial law by the legislative authority of the state, made for the purposes of self-defense, when assailed by an armed force; and the cases and commentaries concerning these commissions can not, therefore, influence the construction of the Rhode Island law, nor furnish any test of the lawfulness of the authority exercised by the government.’ This decision does not determine in what branch of the government resides authority to declare martial law. But it recognizes martial law as a legitimate means of preserving the government in emergencies calling for it. It shows that the ground taken by counsel on the other side, that no such authority is lodged in any branch of the government, is untenable. On page 44 the court replies to the same kind of argument we have heard here, of the danger of intrusting so much power to the president: ‘It is said that this power of the president is dangerous to liberty, and may be abused. All power may be abused if placed in unworthy hands. But it would be difficult, we think, to point out any other hands in which this power would be more safe, at the same time, equally effectual. When citizens of the same state are in arms against each other, and the constituted authorities unable to execute the laws, the interposition must be prompt, or it is of little value. The ordinary course of proceedings in courts of justice would be utterly unfit for the crisis. And the elevated office of the president, chosen as he is by the people of the United States, and the high responsibility he could not fail to feel when acting in a case of so much moment, appear to furnish as strong safeguards against willful abuse of power as human prudence and foresight could well provide. At all events, it is conferred upon him by the constitution and laws of the United States, and must, therefore, be respected and enforced in its judicial tribunals.’ 7 How. [48 U. S.] 44.
FN7 From pamphlet report by Rickey & Carroll, Cincinnati, Ohio, 1863.
‘Moreover, when a military force is called out to repel invasion or suppress a rebellion, it is not placed under the direction of the judiciary, but under that of the executive. Suppose the military force, legally and constitutionally called into service for the purposes indicated, should find it necessary, in the course of its military operations, to occupy a field or garden, or destroy trees, or houses, belonging to some private person; can a court, by injunction, restrain them from committing such waste? It can do so in time of peace, and, if its powers are to continue in time of war, the judiciary, and not the executive, will command the army and navy. The taking or destroying of private property, in such cases, is a military act, and act of war, and must be governed by the laws of war; it is not provided for by the laws of peace. In the same way, a person taken and held by the military forces, whether before, or in, or after a battle, or without any battle at all, is virtually a prisoner of war. No matter what his alleged offense, whether he is a rebel, a traitor, a spy, or an enemy in arms, he is to be held and punished according to the laws of war, for these have been substituted for the laws of peace. And for a person so taken and held by the military authority, a writ of *908 habeas corpus can have no effect, because, in the words of the United States supreme court, ‘the ordinary course of justice would be utterly unfit for such a crisis.’’ Halleck, Int. Law, 378. The same writer states circumstances in the history of this country, which your honor will find it easy to verify. From this statement it appears that the practice, now complained of as strange and unprecedented, was commenced under the administration of Washington. Jefferson and Jackson are also implicated. When Vallandigham shoots his poisoned arrows at President Lincoln, if there should prove to be strength enough in the bow, the same aim will pierce a succession of illustrious defenders of liberty. Here is the statement: ‘During the administration of President Washington, in the Pennsylvania ‘Whisky Insurrection’ of 1794 and 1795, the military authorities engaged in suppressing it disregarded the writs which were issued by the courts for the release of the prisoners who had been captured as insurgents. General Wilkinson, under the authority of President Jefferson, during the Burr conspiracy of 1806, suspended the privilege of this writ, as against the superior court of New Orleans. General Jackson assumed the right to refuse obedience to the writ of habeas corpus, first in New Orleans, in 1814, as against the authority of Judge Hall, when the British army was approaching that city; and afterward, in Florida, as against the authority of Judge Fromentin.’ May it please your Honor! I have spoken some words of praise of the character and services of General Burnside. I can now be silent. The patriot who, in these times, can get himself abused for following in the footsteps of Washington, Jefferson, and Jackson, has triumphed over all need of my poor commendation. The wrath of his country’s enemies has been made to praise him.
The authorities relied upon to show that the laws of war, or martial law, are not any more allowed in Great Britain, I have shown to be in error. The statements, though made by parties whom we might expect to be informed, and which have probably misled counsel on the other side, are shown by Mr. Cushing, attorney general under the late President Pierce, to have resulted from misapprehension and confusion of ideas. But this showing depends not on the authority alone of his name, strong as it may be. The errors referred to are so demonstrable to reason, and so utterly at variance with history, it is quite unnecessary to go into a further exposition concerning them. In the dissenting opinion of Judge Woodbury, which I have freely adverted to, he was misled into a similar statement; but he let into it a sufficient number of exceptions to correspond with all the occasions there have been in Great Britain for martial law within the last hundred years. He insisted, however, that they had no constitution, and such acts were only done by parliament in virtue of its unlimited power. I must again say that the question is not, who may do it? but, can it be done? For the purpose of my argument, it is sufficient if done by parliament, but the fact is otherwise. The quotation from Hansard’s Debates shows that once, at least, it has been done by the executive. I have no doubt the same is true in other instances. The important matter is, however, it has been done, both in Great Britain and this country, every time there has been occasion for it. It is a rule of action in both countries. The misconception of terms and confusion of ideas among common lawyers, on this topic, are not confined to England. A much clearer perception is shown by American writers on the main question involved; but even Mr. Cushing and Mr. Halleck fall into error in some particulars. The relations of suspension of habeas corpus to martial law are less well defined. They explain these to us in a jumble of words, which need more explanation than the facts sought to be explained. It has been the good fortune of Great Britain and the United States to experience so few occasions for the laws of war within their own borders, and those occasions have been of duration so brief, that a prompt and unflinching recognition and use of martial law, when the occasions have happened, is all that I need show. Peace turns attention to thoughts of peace. The judges then take their turn, and, danger being over, they sometimes bite their thumbs at the generals in a very affecting manner. We are told that acts of indemnity are passed in order to cover the illegality of the laws of war, as if a law could be illegal! When lawyers and judges fall to using rigmarole, it is not common for politicians and pamphleteers to allow themselves to be outdone. In the passage quoted from Hansard, Lord Castlereagh is made to say: ‘I maintain that it is a constitutional mode for the executive government to exercise martial law in the first instance, and to come to parliament for indemnity afterward. * * * They did it on the principle that they were authorized by the king’s prerogative, provided they did not transgress the necessity of the case.’ This call for indemnity is often said to signify that the act was unlawful. What indemnity could be needed for a lawful act? So, then, it would appear to be a constitutional mode to do the unconstitutional thing, intending presently to apologize for it. Mr. Grey (afterward Earl Grey) was not impressed with the clearness of this explanation. He says: ‘It was better that the executive government should resort to what had been called (he thought not legally) its prerogative of proclaiming martial law. That was no prerogative of the crown, but, rather, an act of power sanctioned by necessity, martial law being a suspension of the king’s peace.’ Here, then, is a blaze of light. It was better to resort to that which did not exist, to wit, the prerogative. It was an act of power ‘sanctioned’ by necessity, ‘martial *909 law being a suspension of the king’s peace.’ This luminous expounder had arrived at the conclusion that in war peace must be considered as suspended. It did not, however, occur to him that it is war itself which suspends peace, and not the laws of war, which of necessity exist when war exists.
Our own writers follow in the same train. Mr. Attorney General Cushing, in the opinion before quoted says: ‘We have in Great Britain several recent examples of acts to give constitutional existence to the fact of martial law.’ Mr. Halleck says: ‘It seems that no act of parliament is required to precede such declaration, although it is usually followed by an act of indemnity, when the disturbances which called it forth are at an end, in order to give constitutional existence to the fact of martial law.’ They are explaining the laws of England, and on this part of the topic relax their vigilance, repeating merely the incongruous failures which they find. Passing over the idea that parliament can make a thing constitutional which is not,--an absurdity,--they are not boggled at the declaration that an act already gone by and ended can be made to have been constitutional, which was at the time not so. On the theory thus furnished by Englishmen, and incautiously followed by some of our best writers, indemnity acts, if truly expressing their meaning, would read as follows: ‘Whereas, certain acts have been done which are known to have been unconstitutional and illegal, therefore they were and are constitutional, legal acts.’ This is carrying the power of parliament to a pitch compared with which Omnipotence is feeble. If I may venture to suggest the explanation they were manifestly groping for, it is in the fact alluded to by Earl Grey: the king’s peace is suspended. This suspension of peace being usually accompanied by more or fewer proclamatory documents, and these documents being the only part taken in war by judges and legislators, they have mistaken the documents for the war. They have omitted to remember that a failure of documents would not change the fact of war. The war, and not the documents, suspends peace. Of this the writers are sufficiently aware in other parts of their discussion. Mr. Attorney General Cushing says: ‘When martial law is proclaimed under circumstances of assumed necessity, the proclamation must be regarded as the statement of an existing fact, rather than the legal creation of that fact.’ In this statement Mr. Halleck concurs. Indeed, nothing can be more obvious. Yet most of the antipathy and all the arguments I have met with, directed against martial law, are arguments against enforcing it during peace. In other words, they are arguments against inflicting the rigors of war under false pretexts. A part of the confusion is occasioned by speaking of martial law as if it were distinct and different from the laws of war, or rights of war. No one doubts that, when war exists, it is a thing of such a paramount and supreme nature that its laws must prevail. The existence of war is not a suspension of habeas corpus; but, for all arrests authorized by the laws of war, the answer that war exists, and that the arrest was made in accordance with its rules, is a lawful and sufficient answer to a habeas corpus. General Burnside has expressed it very well: ‘We are in a state of civil war, and an emergency is upon us which requires the operation of some power that moves more quickly than the civil. There never was a war carried on successfully without the exercise of that power.’
Indemnity acts are sufficiently accounted for without supposing them to be necessary as a legal justification for acts of war. They are commonly enacted in civil wars, in which the application of the rigors of war is startling to people long accustomed to peace and civil administration. A concurrence of all branches of government in any public acknowledgment of its necessity, either before or after the fact, cannot fail to produce a valuable effect on the public mind. Such acts may, also, in England answer a good legal purpose. They may close the courts to vicious and experimental litigation, by which persons engaged in the public service in time of war, might, on the return of peace, be ruined or compelled to flee their country. Counsel on the other side, I understood him to say, by instruction of his client, has, at some length, called our attention to the number and variety of civil actions, to which, on his theory, General Burnside has exposed himself, as well as all who acted under his orders. On his theory, no act of indemnity can shield our soldiers. The right he claims is a constitutional right, which legislation cannot affect. On his theory, every act of war by our soldiers is a trespass, and no act of indemnity can reach them. Hard as the fortunes of soldiers may be in war, on his theory, peace will bring them no repose. Our poor country, defended by their valor, enriched by their blood, however grateful it may be, can only welcome them home to the embrace of bailiffs. We may ring bells, kindle bonfires, and pour out our hearts in thankfulness to God for returning peace, but the noble boys who won it for us must skulk in hiding places, to dream only of writs and constables and the law’s delays; certain that their danger in peace is in proportion to their valor in war, and that he only can be hopeful who can prove himself to have been useless. This is not an exaggeration, but a necessary, logical result of the doctrine advanced here on behalf of Mr. Vallandigham. The proposition is that the right to personal liberty, freedom of speech, etc., are absolute, inalienable rights, guaranteed inflexibly by the constitution, and not to be suspended in any emergency, nor made to yield to any public necessity. I repeat that the question argued by counsel on the other side is not a question under what circumstances *910 these rights may be abridged, but he denies the legal possibility of such abridgment. These rights extend to all citizens,--to persons subject to military duty as well as the rest. Yet the same constitution which guarantees these inalienable rights authorizes the making of war and the calling out of the militia. Pressed by this fact, counsel do not seek to deny that the liberty of the soldier is, for the time of his service, abridged. This is too palpable for denial. He seeks, therefore, to get round it by reading from an English decision to the effect that the soldier gives up his liberty by contract. This poor evasion does not apply to persons who are drafted against their will; but it is itself a denial that these rights are inalienable, for it speaks of alienating, by contract, an inalienable right. The conclusion is inevitable. These rights, so carefully enumerated in the constitution, and so often referred to by learned counsel, are liable to be abridged under particular circumstances. The constitution contemplates and provides for such abridgment. This abridgment is especially provided for in time of war. And since no limits are fixed to the means to be used in war, everything may be done which the necessities of war require. The laws of war are, for the time, as much a part of the constitution as the laws of civil procedure are in time of peace.
My argument is founded on the idea that the laws of war are a necessary incident of a state of war, and, therefore, depend for existence only on the fact of war. It is quite unnecessary to refer to proclamations or advertisements of the fact. Order No. 38 is a proclamation, if it were a question of proclamations. Every branch of government, state and federal, has made numerous annunciations of this war. Counsel calls our attention to certain proclamations of the president relating to emancipation of slaves, which define, for that purpose, the insurrectionary districts; and counsel insists that these must be held as limiting martial law to those districts. Those proclamations do not include Missouri, Kentucky, Tennessee, Western Virginia, or portions of Eastern Virginia, or Norfolk, or Portsmouth. If the laws of war depend on these proclamations, they are excluded from the places where the war has been most active. They did not purpose to define the limits of war, but the limits of emancipation. If my argument is sound, neither the presence nor absence of proclamations can materially affect the question. It is a question of the existence of war. It may be said that this argument, if correct, reduces us to a state of dependence on military power. Far otherwise. It is not a state to be argued into or argued out of. If, when threatened by generals and armies who are traitors and enemies, we are obliged to depend upon generals and armies who are patriots and friends, nothing can be gained by denying the fact, or by keeping up a false pretext of being in some other condition. The danger whatever it may be, is not very much diminished by going into hysterics; nor is it greatly changed in its character by the names applied. It is sometimes called ‘no law,’ ‘an abrogation of law,’ ‘a suspension of law,’ because for a time the ordinary civil administration is suspended or subordinated to a great public necessity. But the law provided for such occasions is in force. It is appealed to, to protect us when other laws fail. The laws of war have their appropriate checks and limitations. The general in command of an army, in the field of his operations, for purposes of war, is expected to act with promptness, and sometimes with secrecy. He is not expected to write out and deliver his opinions, or to wait for briefs. This may be his misfortune; it certainly is not his fault. His action in this sense may be called ‘arbitrary,’ and his administration ‘despotic.’ But, after all, he is limited and restrained. If he push beyond the rights of war, the laws of war do not protect him. In applying those laws, he is further restrained by a sense of propriety and duty. He acts in peril of the disapprobation of higher authority, who may displace, or, in some cases, impeach, him; in peril of the disapprobation of the Supreme Being, and of his countrymen; in peril of that sure infamy which awaits all who unnecessarily aggravate the evils of war. It is not easy to conceive a situation appealing to higher sanctions than that of a general commanding in war. ‘At all events,’ says General Burnside, ‘I will have the consciousness before God of having done my duty to my country.’
May it please your honor: I have pursued this branch of the argument at some length. If the view of the constitution here presented be, as it appears to me, well grounded in reason, and sustained by authority, the main proposition on which the petitioner rests his application is overthrown, and, with it, the claim to a writ of habeas corpus. I did not understand counsel to argue that, in the case of Vallandigham, there were circumstances to render this arrest illegal or unnecessary, provided such arrests can in any case be justified. I did distinctly understand him to disclaim the idea that the constitution permits a military arrest to be made, under any circumstances, or a person not engaged in the military or naval service of the United States, nor in the militia of any state called into actual service; and to rest his case on that broad denial. The whole petition is framed on this idea, for none of the charges are denied. Upon first impression, your honor may have inclined to the belief that petitioner has assumed an unnecessary burden, and might have more easily made a case by putting General Burnside to show the propriety of this arrest; admitting the general right to make such arrests as were indicated by the necessities of the service, but denying any ground for this arrest. But your honor will find that no mistake has been *911 made by learned counsel on the other side, in this particular. The circumstances shown justify the arrest, if any arrest of the kind can be justified. If General Burnside might have arrested him for making the speech face to face with his soldiers, the distance from them at which it was uttered can make little difference. He might make it in camp; and unless he could be arrested, there would be no way to prevent it. The right of publication, of sending by mail and telegraph, is of the same grade with freedom of speech. If utterance of the speech could not be checked, its transmission by mail and telegraph could not be. And I so understand the argument of the counsel of Vallandigham. It appears to claim, and go the whole length of claiming that it can do the army no harm to read such addresses; nor, of course, to hear them. It is necessary the argument should not stop short of that, in order to meet the question, and it does not. Yet this is not the whole extent to which it must go to avail the petitioner. It must go to the extent of showing that this court is authorized to determine that such addresses may be heard by the army, the opinion of the commanding general to the contrary notwithstanding. It goes and must go the extent of transferring all responsibility for what is called the morale and discipline of the army from its commanding general to this court. Is it not certain that, if these addresses shall persuade nobody, their authors will be disappointed? Is it not certain that any soldier persuaded to believe that his government is striving to overthrow liberty, and for that purpose is waging a wicked and cruel war, can no longer, in good conscience, remain in the service? The argument leads to one of two conclusions. We are to be persuaded by the men who make the speeches that the speeches will not produce the effect they intend,--a persuasion in which their acts contradict their words,--or we are to consent to the demoralization of the army. The constitution authorizes and even requires the army to be formed, but at that stage of the transaction interposes an imperative prohibition against the usual means of making it effective. It is said, however, that the charges against Vallandigham are triable in the civil tribunals. So are a large proportion of all the charges which can be brought against any one engaged in an insurrection. No Rebel soldier has been captured in this war, no guerrilla, who was not triable in the civil tribunals. The argument in this, as in other particulars, necessarily denies the applicability of the laws of war to a state of war. * * *
May it please your honor: I must bring this argument to a close. Are we in a state of war or not? Did the constitution, when it authorized war to be made, without limitations, mean war, or something else? The judicial tribunals provided for in the constitution, throughout twelve states of the Union, have been utterly overthrown. In several other states they are maintaining a feeble and uncertain hold of their jurisdiction. None of them can now secure to parties on trial the testimony from large portions of the country, to which they are entitled by the constitution and laws. The records of none of them can be used in the districts dominated by the insurrection. Counsel tells us that, except the Union provided for in the constitution, there is no legal Union. Yet that Union is, temporarily I hope, but for the present, suspended and annulled. This court can have no existence except under that Union, and that Union, now, in the judgment of those who have been intrusted by the constitution with the duty of preserving it, depends upon the success of its armies. The civil administration can no longer preserve it. The courts which yet hold their places, with or without military support, may perform most useful functions. Their jurisdiction and labors were never more wanted than now. But they were not intended to command armies. When generals and armies were sent here, they were sent to make war according to the laws of war. I have no authority from General Burnside to inquire, and I have hesitated to inquire, but, after all, will venture to inquire, whether an interference by this court with the duties of military command must not tend to disturb that harmony between different branches of government, which, at this time, is most especially to be desired? * * *
Argument of Hon. Flamen Ball.
May it please the court: In rising to address your honor on behalf of General Burnside, I cannot refrain from expressing the feeling which I entertain in regard to the great importance of this application; for the result of your decision, whatever it may be, must be looked upon with the greatest interest, not only by the applicant, in whose behalf it has been invoked, but by the people of our country, whose national rights are, nay, whose very existence as a great nationality is, imperiled by a gigantic rebellion against the constitution and the laws of the United States,--a rebellion, I take leave to say, originating in a deeply-laid and maturely-planned conspiracy for the overthrow of the constitution, fostered and encouraged by official perjury and official plunder, and prosecuted, without just cause, with cruel and relentless hate, and with remorseless energy, against a government whose sway over the people for more than seventy years has been exercised with the utmost benignity; carefully guarding the rights of all, and jealously protecting the liberties of all. The darkest pages of the history of the world furnish no parallel to the scene now presented in the United States. The quiet paths of domestic peace, which, until lately, were trodden by the industrious pursuits of honest labor, have been suddenly invaded by an armed rebellion, whose sole object is the overthrow of the institutions *912 of the republic, established by the valor, the patriotism, and the wisdom of our ancestors, and the erection, upon their ruins, of an absolute despotism. I yield to no man in reverence for the sacredness and inviolability of that great guarantee of personal liberty, the writ of habeas corpus, which has been applied for in this case; for, next to the principles and precepts of religion, the value and importance of that writ, as the safeguard of the humblest citizen, were inculcated in my mind in youth, and have become, as it were, a part of my very existence; but while I fully recognize the right of every citizen, who may be restrained of his personal liberty, to have the cause of that restraint judicially inquired into, I must also recognize the great fact that, by reason of this rebellion, the very existence of our whole country, as a nation, is in jeopardy; and that, while on the one hand the personal rights of the citizen are to be protected (unless by reason of crime he may have forfeited those rights), we must all remember that our country has rights, and that, in this great crisis in her history, those rights must be asserted and maintained. Among those rights the right of self-preservation is paramount. If, by reason of the continuance of the civil war now so wickedly waged against the government, the abstract rights of the citizen should be brought into question, I think it may not be regarded as claiming too much for me to insist that the private and personal rights of the individual, when their exercise by him conflict with, and tend to overthrow, the great national right of self-existence, must give way to the rights of the nation. It has been well remarked by De Lolme, in his treatise on the Constitution of England, that: ‘There have been times of public disturbance when the habeas corpus act was indeed suspended, which may serve as a proof that, in proportion as a government is in danger, it becomes necessary to abridge the liberty of the subject; but the executive power did not thus of itself stretch its own authority; the precaution was deliberated upon and taken by the representatives of the people; and the detaining of individuals, in consequence of the suspension of the act, was limited to a certain fixed time.’ It is evident that the power of suspending the writ was vested solely in parliament, because the people of England, taught by the severe lessons of experience, in the invasions and encroachments upon their liberties by the executive tyranny of ancient times, were jealous of the kingly prerogative, and were determined to limit and restrain it, in all cases where the right of the subject to the enjoyment of personal freedom might be drawn in question. Hence it became a received and well-settled principle of constitutional law, that the sovereignty of the British constitution is lodged in parliament, in whose collective capacity of the crown, the lords, and the commons, the ‘omnipotence’ of parliament resides; therefore, the power to suspend this great writ is conceded to rest solely within the discretion of parliament. The right to the writ exists at common law. It is not conferred by statute; for the several statutes of Car. I., Car. II., Wm. & M., Geo. III., and other enactments on that subject, do not confer the right, but are simply declaratory of that which had existed beyond the memory of man, or are directory to the courts and judges, in respect of the practice to be pursued by them, in cases where the writ is demandable. The suspension of this writ may become necessary when the state is in real danger; and, when such an emergency shall arise, parliament may authorize the crown to suspend the writ for a limited time, and to imprison suspected persons, without giving any reasons for so doing. ‘An experiment,’ says Blackstone, ‘which ought only to be tried, and which we believe has never been tried, but in cases of extreme emergency; and in these the nation parts with a portion of its liberty for awhile, in order to preserve the whole forever.’ With us the case is different. The written constitution is the supreme law of the land; and, if governmental omnipotence resides anywhere, it resides there. No act of either the executive, the legislative, or the judicial branches of the government, conflicting with the provisions of that instrument, is valid. But that instrument nowhere, in express terms, confers upon the citizen the right to the writ of habeas corpus. It guarantees to him many civil rights, which are specifically enumerated; but the right to this writ is not one of them. It impliedly concedes that the privilege of the writ exists as a common-law right, when it provides that ‘the privilege of the writ of habeas corpus shall not be suspended unless, when in cases of rebellion or invasion, the public safety may require it.’ But it does not prohibit the president from suspending it: it merely provides that it shall not be suspended unless, when in cases of rebellion or invasion, the public safety may require it. For aught that appears in the constitution, the right to exercise the discretionary power of suspension is vested in the president; and this inference is much strengthened by the fact, that the great lawyers who framed that instrument were all of them learned in the common law, and in all the statutes of the British parliament. Themselves born and educated as British subjects, and familiar with every struggle ever made for freedom, and every triumph for liberty ever achieved by the people of England over kingly usurpation, they inherited the natural jealousy of Englishmen of executive encroachments; and, had they intended to deprive the president of the power of suspending this writ in cases of great public emergency, as they well knew was the case with respect to the power of the crown, and to vest the power of suspension solely with the congress, they would have so provided in the constitution. It is fair, then, to conclude that the power vests *913 in the president; and, in the exercise of that power, as the chief civil magistrate, he may, in his discretion, when the safety of the republic requires it, suspend the writ generally over the whole country, or in a particular department, or in respect of a particular person. This view is strengthened by the late act of congress (March 3, 1863), which expressly provides that the president may, during this rebellion, ‘Whenever, in his judgment, the public safety may require it, suspend the privilege of the writ of habeas corpus, in any case, throughout the United States, or any part thereof.’ And thus the question as to which branch of the government is intrusted with the power of suspension seems to be settled by congress in favor of the president. If, then, the power of suspension is vested in the president, he may exercise that power, in a great crisis like the present, by any appropriate agent he may select for that purpose; and if, as is now the case, the civil authority vested in the marshals, as conservators of the public peace, is insufficient to sustain the government, and enforce the execution of the laws, he may, as he has done, command the aid of the military arm of the nation.
The able argument of my learned colleague has relieved me from the necessity of discussing at great length the various questions which arise in this case, and I shall, therefore, confine myself to the discussion of such points as, in my judgment, most intimately relate to the subject.
Upon the original application, the learned counsel for the relator claimed that the case came within the purview of the act of congress relating to the writ of habeas corpus, approved March 3, 1863; that the allowance of the writ was a matter of strict right on the part of the applicant; and that on the return of the writ, with the production of the body of the applicant, the cause of caption and detention could then be inquired into. But such is not the practice of this court. At the October term, 1862, the court held, on the application for a writ of habeas corpus made on behalf of one Bethuel W. Rupert [unreported], then held as a prisoner under an order of the secretary of war, that the writ was not allowable as of course, but that the court would decide upon the hearing of the application, and grant or withhold the writ in its discretion. That practice is still unchanged, and it must be regarded as the law of this court. It is not a new rule of practice, but has been the rule of practice of other courts, and I will briefly refer to some of the cases. In 1759, a motion, based upon affidavit, was made before the court of king’s bench, for a habeas corpus, to be directed to one Rigby, keeper of the town jail of Liverpool, to bring up the body of one Barnard Schiever, a subject of a neutral power, who had been taken on board of an enemy’s ship, but forced, as it was alleged, into the enemy’s service. His counsel urged that it would be very hard upon this man to be kept in prison until exchanged by cartel, and then sent back to France, where he would be forced into their service again. But the court, Lord Mansfield presiding, thought this man, upon his own showing, clearly a prisoner of war, and lawfully detained as such, and denied the motion. 2 Burrows, 765. Again: In the Case of Hobhouse, 3 Barn. & Ald. 420, the court, Abbott, C. J., and Bayley, Holroyd, and Best, Justices, were unanimous in establishing the rule of practice that the writ of habeas corpus, at common law, although a writ of right, is not grantable of course, but only on motion in term time, stating a probable cause for the application, and verified by affidavit. I also refer to 2 W. Bl. 1324, and to 2 Chit. 207. In the Case of Husted, before the supreme court of New York, an application was made for a habeas corpus, on the ground that he was detained in custody by a captain in the army of the United States, who claimed him as a soldier, enlisted under the authority of the United States. But the court denied the application on the ground that, if the facts stated were returned on the habeas corpus, it would be conclusive against his discharge. 1 Johns. Cas. 136. So, in the Case of Yates, who had been committed by the court of chancery for a contempt, a motion, grounded on sundry affidavits, was made for the allowance of a habeas corpus as of course. But Mr. Chief Justice Kent said that, as this was a matter of importance, the court would take until the next day to consider whether it was proper to grant the motion, and another motion to let the applicant to bail was refused. 4 Johns 318. In the recent Case of Sims, the fugitive slave, which came up before the supreme court of Massachusetts, Chief Justice Shaw held that, before a writ of habeas corpus is granted, sufficient probable cause must be shown; but when it appears, upon the party’s own showing, that there is no sufficient, ground, prima facie, for his discharge, the court will not issue the writ. 7 Cush. 285. In the supreme court of the United States, it is the settled practice to hear argument, either on the motion for the allowance of the writ, or upon the return of a rule to show cause why the writ should not issue. In the Case of Kearney, 7 Wheat. [20 U. S.] 38, who sought release from a commitment for a contempt, the court heard the parties on the motion, and Mr. Justice Story, delivering the opinion, denied the writ. In the Case of Watkins, 3 Pet. [28 U. S.] 193, who was imprisoned by the condemnation of the circuit court of the United States for the District of Columbia, the court, Mr. Chief Justice Marshall presiding, on the motion of the applicant for the allowance of a writ, and counsel not agreeing as to the time of hearing the motion, awarded a rule to show cause why the writ should not issue, and assigned the next motion day as the time for hearing the argument. It was accordingly heard, on the *914 return of the rule, and the motion for the writ was denied. A similar practice has been pursued in other cases. Com. v. Robinson, 1 Serg. & R. 353; Ex parte Campbell, 20 Ala. 89; Hurd, Hab. Corp. 222; Ex parte Bushnell, 8 Ohio St. 599. The practice pursued by the court in this case, in requiring notice of the motion to be served on General Burnside, is substantially the same as that pursued by Mr. Chief Justice Marshall in Watkins’s Case [supra]. The allowance of the writ rests within the discretion of the court or judge before whom the application is made. It does not address itself to the whim or caprice of the court or judge, nor does it involve the exercise of an arbitrary discretion; but it is addressed to the sound judicial discretion of the court,--a discretion illuminated by the lights of judicial precedence and authority, of judicial wisdom, experience, and observation, and by a judicial review of all the facts and circumstances of the particular case. Discretion (says Lord Coke, 2 Inst. 56) is to discern between right and wrong; and, therefore, whoever hath power to act at discretion is bound by the rule of reason and law. It is the right, then, nay, it is the duty, of the court to hear argument upon the motion, so that the whole merits of the application may be ascertained, and a wise discretion exercised.
The first legislation of congress upon the subject of habeas corpus was the act of September 24, 1789, which conferred upon the courts of the United States, and the respective justices and judges of those courts, the power to grant the writ agreeably to the principles and usages of law; but the power to award the writ ad subjiciendum, and to inquire into the cause of commitment, did not extend to prisoners in jail, unless where they were in custody under or by color of the authority of the United States. Afterward, and when, by reason of the state legislation of South Carolina, officers of the United States, charged with executing the laws of the United States, were imprisoned, by state authority, for the alleged offense against state sovereignty, of obeying the laws of the United States in preference to the laws of the state of South Carolina, the act of March 2, 1833 [4 Stat. 634], commonly called the ‘Force Bill,’ was enacted, whereby the jurisdiction of the federal courts and judges was extended, to grant writs of habeas corpus in all cases of prisoners in jail, who had been committed for any act done, or omitted to be done, in pursuance of a law of the United States, or any order, process, or decree of any judge or court thereof. Thus the legislation stood until 1842, when an apprehended difficulty with England superinduced the passage of the act of August 29, 1842 [5 Stat. 539]. The court well remembers the case of People v. McLeod, 25 Wend. 483. In 1837, he, a British subject, was one of a military expedition sent by the Canadian provincial authorities to destroy an American vessel, the steamboat Caroline, then lying at the port of Schlosser, in American waters, and laden with stores and supplies for the rebels congregated at Navy Island. The boat was destroyed, and an American citizen, standing on the shore, was killed. Afterward, McLeod came to New York, and boasted that he participated in that outrage. He was arrested and indicted for murder. A writ of habeas corpus was applied for and obtained in his behalf, from the supreme court; but the court, Cowen, J., presiding, refused his discharge on the ground that such a case as his was not provided for by law. The queen of Great Britain avowed the act of McLeod, and demanded his release, which demand, after much controversy, was acquiesced in by Mr. Webster, then secretary of state. That act extended the jurisidiction of the justices and judges of the United States to the granting of writs of habeas corpus in all cases of a prisoner or prisoners in jail or confinement, when he or they, being subjects of a foreign state and domiciled therein, shall be in custody under any authority or law of the United States, or any one of them, on account of any act done or omitted under any alleged right, title, authority, privilege, protection, or exemption, set up or claimed, under the commission, or order, or sanction, of any foreign state or sovereignty, the validity and effect whereof depend upon the law of nations, or under color thereof.
The only remaining legislation on this subject is the act of March 3, 1863. This act had its brith in consequence of the present rebellion, and its provisions will become inoperative when the insurrection shall have been suppressed. It is evidently intended, so far as may be consistent with the public safety, to provide for a speedy trial of all persons who may be summarily arrested by or under the authority of the president, and to prescribe a limit to the imprisonment consequent upon such arrests. Its object is twofold: By sections 1, 2, and 3, it authorizes the president, whenever, in his judgment, the public safety may require it, to suspend the privilege of the writ of habeas corpus during the present rebellion; and it exempts all officers, civil and military, from liability, in answer to any writ of habeas corpus, to return with it the body of any person retained by the authority of the president, and suspends all proceedings under the writ before the court or judge issuing it, so long as said suspension shall remain in force and said rebellion continue. It also provides that persons held as state prisoners by order or authority of the president or of the secretaries of state and of war, may, in certain cases, be discharged or let to bail upon the terms provided by the act. By sections 4, 5, 6, and 7, it provides that any order of the president, or under his authority, made at any time during the existence of said rebellion, shall be a defense in all courts in any action, civil or criminal, pending or to be commenced, ‘for any search, seizure, arrest, *915 or imprisonment made, done, or committed, or acts omitted to be done, under and by virtue of such order, or under color of any law of congress;’ and it further provides for the removal from the state courts to the federal courts of all suits and prosecutions which have been or shall be commenced against any officer, civil or military or against any person for any arrest or imprisonment made, or other trespasses or wrongs done, or any act omitted to be done at any time during the present rebellion, by virtue or under color of any authority derived from, or exercised by or under the president of the United States, or any act of congress. If the first three sections of the act referred to are prospective in their operations, then it is clear that inasmuch as no proclamation suspending the writ of habeas corpus has been issued by the president since the passage of the act, the application of Mr. Vallandigham does not come within any of its provisions. On the other hand, if those sections by retrospective, as well as prospective in their operation, and his case falls within the act, then he is expressly excluded from the privilege of the writ, and if it should issue to Major General Burnside, he will be bound to make the return provided for by the act, and this proceeding would be suspended so long as the rebellion shall continue. It is evident that the last four sections of the act are intended to embrace all cases of arrest under the authority of the president, past as well as future; but as these are solely remedial in their nature, and have no bearing on the motion now before the court, it is unnecessary to discuss them further than to suggest that, if it shall become the duty of the secretary of war to report to the judge of this court the name of Mr. Vallandigham as a state prisoner, held under his authority, and the next grand jury should terminate its session without finding an indictment against him, it would then become his right to apply to the judge for an order that he may be brought before him, that his case may be examined into, and that he may be discharged or let to bail, according to the circumstances of the case.
In my judgment, however, the application now presented falls solely within the provisions of the act of September 24, 1789. He is in custody ‘under or by color of the authority of the United States,’ and, if he be entitled to any relief, it must be under the act last named. By the creation of the department of the Ohio, the president invested Major General Burnside, the commander thereof, with all the powers necessary to perform his whole duty. That department comprises the states of Kentucky, Ohio, Indiana, Illinois, and Michigan, of which, as stated by General Burnside, one state is at this moment invaded, and three others have been threatened by the enemy. It is a period of domestic war, and all the energies, powers, and resources of the nation are necessarily called into exercise for the maintenance of the constitution and laws of the country, for the restoration of peace, and for the preservation of the liberties of the whole people. The civil arm of the government has proved powerless to effect this object, and it has been necessary for the president to call forth the army and navy, in order that he may, as his official oath requires him to do, ‘preserve, protect, and defend the constitution of the United States.’ To that end, it became necessary to subdivide the country into military departments, in order that his great duty of preserving, protecting, and defending the constitution might be faithfully and effectively performed. Of no other officer under the constitution is such an oath required, and it is manifest that in requiring that oath of the chief executive authority, and thus reposing in his hands alone that great and solemn trust, it was intended, by the framers of the constitution, that he should possess, and in his discretion exercise, all the powers necessary to enable him to execute the trust, and to transmit to his successors, through all coming time, a great national unity, to all intents and purposes the same, unabridged and unimpaired, as it had been transmitted to him by his predecessors. All the wealth and all the military and naval power of the nation were at his service to enable him to perform that duty, and it was expressly provided by congress, by the act of February 28, 1795 [1 Stat. 424], that ‘whenever the laws of the United States shall be opposed, or the execution thereof obstructed, in any state, by combinations too powerful to be suppressed by the ordinary force of judicial proceedings, or by the powers vested in the marshals by this act, it shall be lawful for the president of the United States to call forth the militia of such state, or of any other state or states, as may be necessary to suppress such combinations, and to cause the laws to be duly executed.’ The president is the sole and exclusive and final judge whether the exigency contemplated by the constitution and by the act of congress has arisen, and this has been the construction put upon this act by the supreme court of the United States in the case of Martin v. Mott, 12 Wheat. [25 U. S.] 19. In this case Mott, a private militiaman, was called into service in the war of 1812, by the governor of New York, upon a requisition of the president of the United States, but did not go out. In 1814, Mott was summoned before a court-martial, and tried for the offense of neglecting the call of the governor, was convicted and sentenced to pay a fine, or, in case of nonpayment, to imprisonment for twelve months. The sentence of the court was approved by the president, and Martin, a deputy marshal, collected the fine. Mott sued Martin for so doing, and the case, having passed through the state courts of New York, was finally decided by the court of errors in favor of Mott, and Martin then obtained his writ of error to the supreme court of the United States, where the judgment of the court of *916 errors was reversed. Mr. Chief Justice Marshall who delivered the opinion of the court, after affirming the constitutionality of that act of congress, expressly says of the president: ‘He is, necessarily, constituted the judge of the existence of the exigency in the first instance, and is bound to act according to his belief of the facts.’ On the breaking out of this rebellion he did so act. In his proclamation of April 15, 1861 [12 Stat. 1258], he says: ‘Whereas, the laws of the United States have been, for some time past, and now are opposed, and the execution thereof obstructed, in the states of South Carolina, Georgia, Alabama, Florida, Mississippi, Louisiana, and Texas, by combinations too powerful to be suppressed by the ordinary course of judicial proceedings, or by the powers vested in the marshals by law; now, therefore, I, Abraham Lincoln, president of the United States, in virtue of the power in me vested by the constitution and the laws, have thought fit to call forth, and hereby do call forth, the militia of the several states of the Union, to the aggregate number of seventy-five thousand, in order to suppress said combinations, and to cause the laws to be duly executed. The details for this object will be immediately communicated to the state authorities through the war department. I appeal to all loyal citizens to favor, facilitate, and aid this effort to maintain the honor, the integrity, and the existence of our National Union, and the perpetuity of popular government; and to redress wrongs already long enough endured. I deem it proper to say that the first service assigned to the forces hereby called forth will, probably, be to repossess the forts, places, and property which have been seized from the Union; and in every event, the utmost care will be observed, consistently with the objects aforesaid, to avoid any devastation, any destruction of, or interference with, property, or any disturbance of peaceful citizens in any part of the country.’ The proclamation closes with a command to the persons so combining to disperse within twenty days, and with an order to convene the congress on the fourth day of the following July. The congress convened accordingly, and, in order to sustain the president in the performance of his great duty, provided for an increase of the regular army and of the navy, and also placed at his disposal an additional force of five hundred thousand volunteers. Thus the war for the preservation of the National Union was full inaugurated, and the president as the civil executive, and as commander in chief of the army and navy, was fully clothed with all the necessary, legal, and physical power to accomplish the object of his proclamation.
The creation of the department of the Ohio, and the appointment of a major general to command it, were part of the necessary means employed, in the discretion of the president, to accomplish the end in view; and the official acts of the major general, performed under the direct authority of the president, must be regarded as the acts of the president himself. In the case of Martin v. Mott, just referred to, the chief justice says: ‘If he does so act, and decides to call forth the militia, his orders for this purpose are in strict conformity with the provision of the law; and it would seem to follow, as a necessary consequence, that every act done by a subordinate officer, in obedience to such orders, is equally justifiable. The law contemplates that, under such circumstances, orders shall be given to carry the power into effect; and it cannot, therefore, be a correct inference that any other person has a just right to disobey them. The law does not provide for any appeal from the judgment of the president, or for any right in subordinate officers to review his decision, and, in effect, defeat it. Whenever a statute gives a discretionary power to any person, to be exercised by him upon his own opinion of certain facts, it is a sound rule of construction that the statute constitutes him the sole and exclusive judge of those facts; and, in the present case, we are all of opinion that such is the true construction of the act of 1795.’ This doctrine of the chief justice is the same recognized in the law of nature as applied to the law of nations. Vattel [Law Nat.] says (bk. 3, c. 2, § 19): ‘Every military officer, from the ensign to the general, enjoys the rights and authority assigned him by the sovereign; and the will of the sovereign, in this respect, is known by his express declarations, contained either in the commissions he confers, or in the military code, or is, by fair deduction, inferred from the nature of the functions assigned to each officer: for every man who is intrusted with an employment is presumed to be invested with all the powers necessary to enable him to fill his station with propriety, and successfully discharge the functions of his office.’ It would be a very difficult task, if, indeed, I could succeed in doing it, to enumerate all the duties which General Burnside is called upon to perform by reason of the command thus conferred upon him. Charged with the care of an extensive department, comprising five states, one of which is already invaded by the enemy, and three others have been threatened; controlling a large army now in the field; obliged to issue requisitions for food, clothing, medicines, and all other munitions and habiliments of war; liable to have his plans made known and thwarted by spies communicating with the enemy, and the power of his army weakened by the falsehoods published and circulated within his lines by rebel emissaries and rebel sympathizers seeking to sow seeds of distrust and disaffection in the minds of his soldiers, it became necessary to establish a rigorous police system throughout his department, and in so doing he promulgated ‘general order No. 38.’ This order is intended to embrace as well those in civil life who may offend against its provisions by declaring sympathy p917 *917 for the enemy in words or speeches, and discouraging the soldiers now on duty, and those who may be hereafter called upon to perform military service, as those who, by carrying secret mails, and recruiting soldiers for the enemy, commit overt acts of treason by giving aid and comfort to the rebels. It was not necessary to issue such an order to his soldiers, for they are all honestly engaged in performing their high duties in the field; and the rules and articles of war, with which they are familiar, provide for the punishment of all persons in the military service for all offenses committed by them. But the civilian, not being strictly under military control, need not, unless he choses, subject himself to any of the penalties provided for by the order. In the case of Mr. Vallandigham, he saw proper, at a public meeting held in Ohio, and in a public speech, to express his sympathies with the rebels in arms against their country, to declare disloyal sentiments and opinions, and, so far as he could, to weaken the power of the government in its efforts to suppress the Rebellion. For this offense, in open violation of that general order which he then referred to and denounced, he was arrested, brought before a military commission, tried and convicted. He now seeks relief from that sentence, whatever it may be, and asserting, by his counsel, the great privilege of the writ of habeas corpus, demands of this court his discharge. The violation of this order by him was not the result of accident; it was deliberately, and, for aught I can see, purposely violated, in order either to defy the military power of the president, or to bring about a conflict between the military and the civil power of the government. It may be that he desired to show to the people that liberty of speech meant a license to say whatsoever he pleased, without regard to times, persons, or circumstances. It is claimed for him, by his learned counsel, that he is guilty of nothing but the use of words; that the utterance of words is not treason; and that an overt act must be shown to have been committed to constitute the crime of treason. But may not words be actionable? Is not the utterance of words often held to be a misdemeanor? Words of slander are actionable; words which provoke a breach of the peace are punishable; words used to entice a soldier to desert are indictable; so are words used in resisting an officer attempting to serve legal process. General Burnside saw that, to a considerable degree, his earnest efforts to perform the trust reposed in him in his department were seriously impeded, not only by the presence of spies, recruiting officers, and writers of letters, and the carrying of secret mails to the rebels, but by the promulgation of disloyal sentiments and opinions, and the expression of sympathy for the rebels within his lines. He saw that the expression of such sentiments and opinions had a tendency to bring the constitutional government of the country into contempt, and consequently weaken his authority and abridge his usefulness, and to that extent sustain and encourage the enemy and protract the war. He had no alternative but either to act as he did, or to abandon his department. He needed no written law to direct him in his course, for the law of self-preservation, which is the law of nature, is higher than any written law, or written constitution. Clothed as he was with power commensurate with the great duties he was called upon to perform in this extraordinary exigency of the nation, whatsoever in the conduct of any person seriously impeded him in the performance of that duty, it was his right, nay, it was his high duty, to remove. The nature and extent of his power, as a military commander, is very forcibly stated by Mr. Adams, in his speech in congress, delivered in 1842. He says: ‘I lay this down as the law of nations. I say that military authority takes, for the time, the place of all municipal institutions, and slavery among the rest; and that, under that state of things, so far from its being true that the states where slavery exists have the exclusive management of the subject, not only the president of the United States, but the commander of the army, has power to order the universal emancipation of the slaves.’ This being true in regard to the institution of slavery, which exists by force of positive law, it must be held to be the law in respect of all other institutions which, during the great public emergency which has been forced upon the country, conflict with or impair the power of the government in its military operations. A similar principle was afterward promulgated by that distinguished political leader and sincere patriot, Senator Dickinson. He said: ‘There is a power upon which the constitution stands, that lies beneath the constitution and rises above the constitution, and is in and under the constitution: it is the great law of self-preservation,--for communities, nations, and states, as well as individuals. It is older than this government. It is as old as civilization. It had no rise in the constitution. It arises in the very necessity of the existence of civil government.’ The natural right to acquire and possess property, to pursue or not pursue a particular vocation, to bear or not to bear arms, to speak and write freely our sentiments and opinions on all subjects, must give way whenever the exercise of those rights by the individual endangers the public safety, and conflicts with the paramount right of national self-preservation. The nation can well afford to suspend the enjoyment by the individual of these rights, for a season, in order that, by preserving its own existence, it may secure them unabridged to the whole people forever.
It has been asserted in argument that there is no war in Ohio; that the law martial does not exist here, and that martial law is no law at all. But is not Ohio at war? If our state, with its two and a half millions of freemen, *918 is not one of the United States, then Ohio is not at war; but, if otherwise, and the silver light of Ohio’s star still radiates from the azure field of the national flag, then Ohio is at war, and has contributed, and will ever contribute, her full proportion of men, money, and munitions of war towards sustaining the existence of the nation of which it forms a part. It is true that the foot of no hostile foe in arms has ever trodden our soil, or invaded our peaceful homes; but thousands of those homes have already yielded their fathers and sons to the service of their country, many of whom are gone never to return; and it will be but a poor solace to the bereaved wives and mothers of the slain to say to them, ‘Your husbands and sons have fallen in battle, while fighting to uphold the constitution and laws of their country; but Ohio is not at war.’ Ohio is at war because the United States are at war; and, as a part of a military department of the United States, the citizens of the state of Ohio are liable to the operation of the laws of war, as administered ex necessitate rei, by courts-martial or military commissions. These courts, and the rules by which they are governed, have their origin in high antiquity. The ancient court of chivalry was the fountain of martial law, and, in some form or other, courts-martial have always been recognized in England. Formerly, martial law was exercised at the discretion of the crown, and too frequently it was made subservient to bad purposes, and hence it very justly became obnoxious to the people; and not only the propriety, but the legality, of its being executed in times of peace, has been absolutely denied. Hence it is laid down by Lord Coke (3 Inst. 52) ‘that if a lieutenant or other, that hath commission of martial law, doth, in time of peace, hang or otherwise execute any man by color of martial law, this is murder, for it is against Magna Charta.’ Hence, also, Lord Hale, in his History of the Common Law, declares martial law to be, in reality, no law, ‘but something indulged rather than allowed as law: that the necessity of order and discipline is the only thing which can give it countenance, and therefore it ought not to be permitted in time of peace, when the king’s courts are open for all persons to receive justice according to the laws of the land; and if a court-martial put a man to death, in time of peace, the officers are guilty of murder.’ But it is now well settled in England that courtsmartial are courts of special and limited jurisdiction, and are bound by the same rules and principles of evidence as the courts of common law, and their decisions have often been examined and reviewed on habeas corpus by the courts of the common law. Rex v. Suddis, 1 East, 306; Crosby’s Case, 3 Wils. 199; Barnes’ Case, 2 Rolle, 157. So, also, in the United States, proceedings of courts-martial have frequently been reviewed by the civil courts, as well, collaterally, upon writs of habeas corpus, as directly upon writs of error. I refer to a few of the cases: Vanderheyden v. Young, 11 Johns. 150;Houston v. Moore, 5 Wheat. [18 U. S.] 1;Martin v. Mott, 12 Wheat. [25 U. S.] 19. It is true that martial law has not been proclaimed in Ohio; but the formal proclamation of martial law is not necessary in order to give efficiency to the public official orders of the major general commanding the department, or to confer jurisdiction upon the military courts and commissions organized by him for the purpose of trying offenders against said orders. The power of the major general to exercise the functions of his office, and the duty of the citizen to refrain from interfering with the exercise of those functions in time of war, exist without any proclamation of martial law. The power of the one, and the duty of the other, arise from the situation in which the country is placed by the civil war now waged against the constitution; and the power of the president, and of the officers whom he has selected to execute that power, is a power which, to use the language of Senator Dickinson, is a power upon which the constitution stands, that lies beneath the constitution, and rises above the constitution, and is in and under the constitution. It is the supreme law of national self-preservation. It is the exercise of that right conferred by the Creator upon man, the assertion of which in an individual no one will dispute, but which exists with more potency with many men, united in a political society, and constituting a great nation. ‘Since, then,’ says Vattel, ‘a nation is obliged to preserve itself, it has a right to everything necessary for its preservation. For the law of nature gives us a right to everything without which we cannot fulfill our obligations; otherwise it would oblige us to do impossibilities, or, rather, would contradict itself in prescribing us a duty, and at the same time debarring us of the only means of fulfilling it.’ This is the right which has been denominated by Grotius as the internal law of nations, and it applies to nations as well as to individuals. Vattel also says: ‘As men are subject to the laws of nature,--and as their union in civil society cannot have exempted them from the obligation to observe those laws, since by that uniton they do not cease to be men,--the entire nation, whose common will is but the result of the united wills of the citizen, remains subject to the laws of nature, and is bound to respect them in all her proceedings. And since right arises from obligation, as we have just observed, the nation possesses also the same right which nature has conferred upon men in order to enable them to perform their duties.’ [Vatt. Law Nat. LVI.]
The eloquent advocate of Mr. Vallandigham, controverting the assertion of General Burnside, that ‘there is no fear of the people losing their liberties,’ has expressed the fear that our liberties cannot survive a patient submission to arbitrary power. Certainly not, *919 when, in a time of profound peace, when all the civil machinery of the government is everywhere in perfect and harmonious operation, unchecked and undisturbed by the discordant actions of armed rebellion and of civil war, then a tame and continued submission to the encroachments of any arbitrary power must inevitably lead to the overthrow of the liberties of the people, and to the establishment of a despotism. But the case is entirely different in a time of war, and of such a war, the like of which neither this nor any other country has ever witnessed. Now no temporary sacrifice ought to be too great, in order to preserve the unity of the nation; but when the blessings of peace shall return, and the national life shall be no longer threatened, all the power of the country will be devoted to the suppression of every attempt, let it come from whatsoever quarter it may, to invade the liberty of any, even the meanest, citizen.
I now leave this important question with the court, feeling confident that the discretionary power which has been invested in your honor will be wisely exercised. In the investigation of the questions which have arisen in this case, this court will consider, not only the allegations of the relator as set forth in his application, but will take judicial notice of the state of the country, torn and distracted by this wicked rebellion. And the court will also notice judicially all the efforts of the executive, and of those acting under his authority, which are made for the suppression of the rebellion, and the preservation and the perpetuation of constitutional liberty; and I doubt not your honor will endeavor not only not to derogate from executive authority by bringing about a conflict between one branch of the government and another, but, by co-operating as far as possible with the other departments, seek to secure unity of action in all the departments, and a speedy restoration of our country to its former dignity, grandeur, and power, as a great and a united nation. I feel sure, also, that there is no judge now on the bench of the courts of the United States whose patriotic heart does not fill with indignation at the wrongs inflicted on our country by the armed traitors now levying war upon the constitution and laws, and by those unarmed, but quite as dangerous, enemies, who sympathize with and encourage domestic treason. I therefore commit this case to the court, with the firm belief that, by your decision, the hands of the federal executive and of the army and navy will be sustained and strengthened in this great struggle; that the hopes of the patriot in the perpetuity of union will be encouraged; that the attempts of rebel sympathizers to stimulate the rebellion and dishearten our army will be discouraged and frustrated; and that all disloyal citizens, as well those who indirectly, as those who directly, furnish aid, comfort, and encouragement to the enemy, will find that a sure and speedy punishment awaits them at the hands of the military authorities, from whose action they can hope to find no shelter in the technical forms and rules of the courts of the civil law. I trust that the time may soon arrive when the din of arms shall cease, and that our beloved country, purified by the severe trial through which she is passing, shall be once more restored to the delightful avocations of peace, and again stand forth among the nations of the earth, a great, united, and free people, purged of every element of despotism, opening wide her portals for the reception of the oppressed of every nation and of every clime, and exhibiting to the admiration of civilization throughout the world, through all coming time, the example of a pure, a just, a free and united republic.