OPENING ARGUMENT OF
HON. GEORGE E. PUGH
For the Petititoner, Clement Vallandigham
May it please your honor: I insist on my motion for a writ of habeas corpus, notwithstanding the defense attempted by General Burnside. And here I must be allowed to complain of the hardship to which Mr. Vallandigham has been subjected by the court on this occasion. The statement we have just heard, is, in effect, a return to the writ; it avows the caption and detention of the prisoner in manner and form as alleged by the petition; it proclaims the fact that he has been tried by a military commission, and for an offense unknown to the laws of the land; and yet, without having the body of the petitioner in court, so as to prevent the execution, possibly, of an illegal sentence, without any writ or order compelling General Burnside to stay the execution of such a sentence until your honor can determine this application, I am now required to proceed in the discharge of my duty as an advocate.
The writ is not granted as of course, but will only issue upon a sufficient showing; and a refusal to issue the writ is justifiable if the court is satisfied that the petitioner would not be discharged upon a hearing after its return.
Here LEAVITT, District Judge, observed that it was the settled practice of the court to give notice to the defendant, in cases of military arrest, before issuing a writ of habeas corpus; and that Judge Swayne had so announced, in a case from Champaign county, at the last term.
Mr. Pugh. His honor may have intended that as a rule in future; but, inasmuch as the question was not then argued at the bar, I wish to be heard in opposition to the establishment of any such rule. I know that the practice of the court has been otherwise. I know that your honor granted me a writ of habeas corpus, at chambers, without any notice to General Mitchel, the defendant, less than two years ago; and that, sitting here, at October term, 1861, your honor commanded him to show cause why he should not be attached for contempt in disobeying the writ. And I feel confident that no decision or authority can be found, in America or in England, to countenance the rule which Judge Swayne has suggested. The petitioner is clearly entitled, if need be, to call upon the supreme court of the United States to review the proceedings of this court; and how can he do that effectually…until a writ has been issued, or, at least, some determination made of record? And furthermore, as all authorities agree, the writ of habeas corpus is a writ of right; by which I do not mean that a petitioner can sue it out of the clerk’s office, as he may a writ of summons or of subpoena, but that whenever, by his own showing or that of others, on affidavit, it appears that he is unlawfully imprisoned, the court has no choice, no latitude, no right even of postponement.
LEAVITT, District Judge, observed that the granting or refusing of the writ was a matter of judicial discretion.
Mr. Pugh. Of judicial discretion, assuredly; but that means a discretion guided by the principles of the law, not by considerations of convenience or favor.
LEAVITT, District Judge. Certainly.
Mr. Pugh. The doctrine is well announced by Mr. Justice Wilmot in his opinion to the house of lords, May 9, 1758: ‘A writ which issues upon a probable cause, verified by affidavit, is as much a writ of right as a writ which issues of course.’ In the same opinion the learned judge declares that writs of habeas corpus, mandamus, prohibition, supplicavit, and the writ of homine replegiando, are all writs of right; ‘but,’ he adds, ‘a proper case must be laid before the court, by affidavit, before the parties praying such writs may be entitled to them.’ And he continues: ‘They are the birthright of the people, subject to such provisions as the law has established for granting them. Those provisions are not a check upon justice, but a wise and provident direction of it.’
Anterior to the Revolution of 1688, in England, judges were appointed by the crown, and held their offices only during its pleasure. The consequence was, and naturally, that while the writ of habeas corpus could be obtained, in term time, on application to the court of king’s bench, individual judges would not grant it in vacation, or delayed, under various pretexts, to hear and determine upon the case of imprisonment. To remedy these evils, and thus render the writ effectual in every case, the famous act or statute of 31 Car. II. c. 2, was proposed and adopted. ‘It is a very common mistake,’ observes Dr. Hallam, ‘and that not only among foreigners, but many from whom some knowledge of our constitutional laws might be expected, to suppose that this statute of Car. II. enlarged in a great degree our liberties, and forms a sort of epoch in their history.
But, though a very beneficial enactment, and eminently remedial in many cases of illegal imprisonment, it introduced no new principle, nor conferred any right upon the subject. From the earliest records of the English law, no freeman could be detained in prison except upon a criminal charge, or conviction, or for a civil debt. In the former case, it was always in his power to demand of the court of king’s bench a writ of habeas corpus ad subjiciendum, directed to the person detaining him in custody, by which he was enjoined to bring up the body of the prisoner with the warrant of commitment, that the court might judge of its sufficiency, and remand the party, admit him to bail, or discharge him, according to the nature of the charge.
This writ issued of right, and could not be refused by the court. It was not to bestow an immunity from arbitrary imprisonment, which is abundantly provided in Magna Charta, if indeed it were not much more ancient, that the statute of Car. II. was enacted; but to cut off the abuses by which the government’s lust of power and the servile subtlety of crown lawyers had impaired so fundamental a privilege.’ Const. Hist. Eng. c. 8.
This appears, also, from the language of the court in Bushell’s Case, decided nine years before the statute. Bushell and eleven others were the jury which acquitted Penn and Mead, at the Old Bailey sessions, upon an indictment for holding an unlawful assembly; Penn having attempted to preach in Great Church street, and Mead having accompanied him. The recorder of London was so exasperated at this verdict that he fined all the jurymen; sentencing Bushell, as foreman, to pay forty marks, and to be imprisoned in Newgate until they had been paid.
Bushell sued out a writ of habeas corpus from the court of common pleas, and was thereupon discharged from imprisonment. The court said: ‘The writ of habeas corpus is now the most usual remedy by which a man is restored again to his liberty if he have been, against law, deprived of it. Therefore, the writ commands the day and the cause of the caption and the detaining of the prisoner to be certified upon the return; which, if not done, the court cannot possibly judge whether the cause of the commitment and detainer be according to law, or against it. Therefore, the cause of the imprisonment ought, by the return, to appear as specifically and certainly to the judges of the return as it did appear to the court or person authorized to commit.’
One peculiar excellence of the habeas corpus act, so called, was that it required the courts of Westminster in term time, and every judge in vacation, to grant the writ immediately, without excuse or evasion, and immediately proceed to examine and decide upon the cause of imprisonment.
Another excellence was that, being the united act of king, lords, and commons, it could not be repealed, or superseded, or suspended in any manner, without the consent of all. Afterward, to be sure, James II. asserted, and attempted to exercise, what was called a ‘dispensing’ power,--a power, namely, to dispense with the operation of an act of parliament in the case of particular individuals. But this arbitrary assumption was rebuked, and forever put to rest, by the famous Case of the Seven Bishops, 4 State Tr. 304, and cost King James the throne of his ancestors. The declaration *879 of rights, adopted, as a solemn covenant, when William and Mary were called to the place from which James had been expelled, condemns the ‘dispensing power’ in every shape and form; since which time, for now almost two hundred years, the writ of habeas corpus never has been refused, or successfully evaded, or trifled with, in England, except in pursuance of an act of parliament suspending its privilege for a limited period, and in particular cases. Even the privilege of parliament affords no protection against an attachment for disobeying the writ.
Our act of congress, entitled ‘An act to establish the judicial courts of the United States,’ approved September 24, 1789 [1 Stat. 73], declares: ‘Sec. 14. That all the before-mentioned courts of the United States shall have power to issue writs of scire facias, habeas corpus, and all other writs not specially provided for by statute, which may be necessary for the exercise of their respective jurisdictions, and agreeably to the principles and usages of law. And that either of the justices of the supreme court, as well as judges of the district courts, shall have power to grant writs of habeas corpus for the purpose of an inquiry into the cause of commitment: provided, that writs of habeas corpus shall, in no case, extend to prisoners in jail, unless where they are in custody under or by color of the authority of the United States, or are committed for trial before some court of the same, or are necessary to be brought into court to testify.’ 1 Stat. 81, 82.
This act was construed by the supreme court of the United States in the case of Ex parte Watkins, 3 Pet. [28 U. S.] 193. Marshall, C. J.: ‘No law of the United States prescribes the case in which this great writ (habeas corpus) shall be issued, nor the power of the court over the party brought up by it. The term is used in the constitution as one which was well understood; and the judicial act authorizes this court, and all the courts of the United States, and the judges thereof, to issue the writ for the purpose of inquiring into the cause of commitment. This general reference to a power which we are required to exercise, without any precise definition of that power, imposes on us the necessity of making some inquiries into its use according to that law which is, in a considerable degree, incorporated into our own.
The writ of habeas corpus is a high prerogative writ, known to the common law, the great object of which is the liberation of those who may be imprisoned without sufficient cause. It is in the nature of a writ to examine the legality of the commitment. The English judges, being originally under the influence of the crown, neglected to issue this writ where the government entertained suspicions which could not be sustained by evidence; and the writ, when issued, was sometimes disregarded or evaded, and great individual oppression was suffered in consequence of delays in bringing prisoners to trial. To remedy this evil, the celebrated habeas corpus act of 31 Car. II. was enacted, for the purpose of securing the benefit for which the writ was given. This statute may be referred to as describing the cases in which relief is, in England, afforded by this writ to a person detained in custody. It enforces the common law.’
Mr. Pugh then read from 3 Bl. Comm. pp. 136-138, the several provisions of the act of 31 Car. II. c. 2, known as the ‘Habeas Corpus Act.’
And then, sir, we have an act of the congress lately in session, entitled ‘An act relating to habeas corpus and regulating judicial proceedings in certain cases,’ approved March 3, 1863 [12 Stat. 755]: ‘Section 1. That, during the present Rebellion, the president of the United States, whenever, in his judgment, the public safety may require it, is authorized to suspend the privilege of the writ of habeas corpus, in any case, throughout the United States, or any part thereof. And whenever and wherever the said privilege shall be suspended, as aforesaid, no military or other officer shall be compelled, in answer to any writ of habeas corpus, to return the body of any person or persons detained by him by authority of the president; but, upon the certificate under oath, of the officer having charge of any one so detained by him, as a prisoner, under authority of the president, further proceedings under the writ of habeas corpus shall be suspended by the judge or court having issued the said writ, so long as said suspension by the president shall remain in force, and said Rebellion continue.’
This act does not apply, in terms, to the present case; and for the obvious reason that the president of the United States, in whom (solely) the discretion of suspending the privilege of the writ of habeas corpus now resides, has not found it necessary to adopt a measure so unusual and extreme. He cannot exercise the authority thus conferred by a delegation of it to others: he must employ his own judgment, and in view of all the responsibilities of his great office. I take it for granted, also, that he will not decide a matter of such importance by writing a private letter, or sending a telegraphic dispatch: he ought to give notice by a formal proclamation, or in some manner equally authentic; so that all may be advised of the emergency, and govern themselves accordingly. For that is the true object of an executive proclamation. 12 Coke, 76.
But, even then, as we have seen, the writ must be issued: it is the privilege of the writ only, that is, the right to be discharged or admitted to bail, which the president may suspend, and not the right of demanding the writ. And the officer, military or civil, holding *880 a prisoner by the president’s immediate authority, must so certify under oath, as a return to the writ when issued; and, thereupon, proceedings are to be stayed, but the writ is not to be dismissed, and far less, in the first instance, wholly denied. If the oath should be a false one, the officer would be liable to an indictment for perjury, and, of course, would be convicted.
If this be the law, as clearly it is, when the privilege of the writ has been duly suspended, why must a prisoner languish in illegal confinement, day after day, and week after week, under peril of his life by a military sentence, at a time when the public safety does not, in the opinion of the president of the United States, require any obstruction of the ordinary course of justice? Respectfully, therefore, but none the less firmly, in the discharge of my duty as an advocate, I deny the right of this court to establish any rule of practice, in regard to the writ of habeas corpus, at all variant from the practice of the courts of England in modern times. That subject has been passed upon, adjudicated, and conclusively determined by the supreme court of the United States as the tribunal of last resort.
The real question, and the only question, at present, is whether, upon the allegations of his petition, admitting them to be true, Clement L. Vallandigham is lawfully or unlawfully imprisoned. I repeat, sir, that General Burnside does not deny those allegations or any of them. On the contrary, in the statement which has been read, he says: ‘These are substantially my reasons for issuing general order No. 38, my reasons for the determination to enforce it, and, also, my reasons for the arrest of the Hon. C. L. Vallandigham for a supposed violation of that order, for which he has been tried. The result of that trial is now in my hands.’
The case before us, then, is the case of a citizen exempted from military arrest and jurisdiction, but who has, nevertheless, been arbitrarily and violently subjected to them. Can this be, sir, according to the constitution of the United States? General Burnside assumes, throughout the statement which has been read, that he is charged, personally, and above all other citizens, with the maintenance of the federal authority in this neighborhood,--an assumption which, with proper respect to him, is most erroneous and unwarrantable.
His duties, as a major general in the army, are undoubtedly extensive: far be it from me to speak lightly of them, or to detract, in any manner, from their importance. But they do not include many subjects to which, in this statement, he has invited our attention; and they cannot excuse him for what he has done, and what he avows that he has done, in the case of the petitioner.
And, first, that we may have a distinct view of his duties, as well as of our own duties, I will read the preamble and enacting clause in virtue of which the federal government exists: ‘We, the people of the United States, in order to form a more perfect union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this constitution for the United States of America.’
There can be no Union except as intended by that compact. The people have not agreed to any other; and, without their consent, it is impossible that any other should be legitimately established. The justice to be administered in this court, and in all other tribunals, military and civil, must be such as the constitution requires. Domestic tranquility is a condition greatly to be envied; but it must be secured by observing the constitution in letter and in spirit.
General Burnside admonishes us of a certain ‘quietness’ which might prevail as the consequence of enforcing his military order: I answer him that quietness attained by the sacrifice of our ancestral rights, by the destruction of our constitutional privileges, is worse than the worst degree of confusion and violence. Touch not the liberty of the citizen; and we, in Ohio, at least, will be unanimous. We may not concur as to the causes which induced so mighty a rebellion; we may differ as to the best methods of subduing or of mitigating it; we may quarrel as partisans, or even as factionists; but we will, nevertheless, with one accord, sustain the general in the darkest hour of his despondency as well as in the day of triumph,-- sustain him by our counsels, by all our means, and, if necessary, at the expense of our lives.
But we cannot give him our liberties. That sacrifice would be of no advantage to him, and it would render us and our posterity forever miserable. It is not necessary to the common defense; it would not--it cannot--promote the common welfare. I know that General Burnside affects to scorn these and all similar suggestions. ‘There is no fear,’ he asserts, ‘of the people losing their liberties,’--but I will read his argument at large: ‘There is no fear of the people losing their liberties: we all know that to be the cry of demagogues, and none but the ignorant will listen to it; all intelligent men know that our people are too far advanced in the scale of religion, civilization, education, and freedom, to allow any power on earth to interfere with their liberties; but this same advancement in these great characteristics of our people teaches them to make all necessary sacrifices for their country, when an emergency requires.’
I not only fear, but I am well assured by the examples of history, that our liberties cannot survive a patient submission to arbitrary power. It is not the ‘cry’ of demagogues; it is the voice of wisdom in all ages; it speaks to us from the tombs of an hundred republics, once happy, and proud, and confident of perpetuity. It is the watchword of patriots, and *881 the testament of martyrs; it should be the first lesson of youth, the last injunction of the aged to their children.
‘Eternal vigilance is the price of liberty!’ We can have it for no less, and upon no other terms. ‘Religion, civilization, education!’ These do not supply the place of liberty at all; nor have they been found sufficient to preserve it. Other nations, living under despotic forms of government, are quite as religious, and quite as thoroughly civilized, as we are; some of them are much better educated. The rude Roman was free; the Roman of the highest civilization became an abject slave….
I will not entrust my sacred birthright to any man--let him be ever so great or good--upon his promise that, by and by, when he shall have conquered an enemy, or put down a rebellion, he will give it back to me. He may take it without my consent; he may be so strong that I cannot resist; these are misfortunes which I may not be able to avoid: but no words of flattery, no power on earth, can deceive me, or compel me, into any measure of compliance. Better the sharpest pangs of death; or, sharper than death, a life of exile, and poverty and constant hardship! Give me the crust of bread and the cup of water, with liberty, rather than the amplest luxury with servitude. Give me, instead of this genial climate, this fertile soil, this prosperous community, under an arbitrary government, the bleakest Arctic or Antarctic region, the almost insufferable winter, the night of one half-year in duration, the day which can hardly be called a day; but give me, withal, the consciousness--the proud, the noble, the priceless, the inexpressible consciousness--of being a free man!
Whenever General Burnside speaks, therefore, of the government of the United States, I respond that such a government exists only, and only can exist, in virtue of the constitution. To that my allegiance and his allegiance are both due; by that I will stand firmly, and at all hazards; and in the name of that, uttering its very language, I now address him: ‘Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble and to petition the government for a redress of grievances.’
General Burnside holds an office created by act of congress alone,--an office which congress may, at any time, abolish. His title, his rank, his emoluments, his distinction above his fellow citizens, are all derived from that source. I take it to be absolutely certain, therefore, that he can make no ‘law’ which congress could not make. He cannot abridge the freedom of speech, or of the press, or the right of the people to assemble and to consider of their grievances.
And yet, sir, of what does he accuse Mr. Vallandigham? Let the specification of Captain Cutts answer: Of having addressed a public assembly of the electors of Ohio, at Mount Vernon, in Knox county, on the first day of this month. Nothing more; nothing whatsoever. It was an assembly of the people to deliberate upon their grievances, and to advise with each other in what way those grievances could be redressed. Into that forum--the holiest of holy in our political system--has General Burnside intruded his military dictation. Need I say more? What avails a right of the people to assemble, or to consult of their public affairs, if, when assembled, and that peaceably, they have no freedom of speech?
General Burnside appears to think, because he cannot behave with contempt or disrespect toward the president of the United States, that a similar restraint applies to every citizen. He forgets, possibly, that the president, as commander in chief of the army, is his superior in military rank; at all events, that is the reason governing his case. The president is protected, as against him, by the very words of the sixth article of war: ‘Any officer or soldier who shall behave himself with contempt or disrespect toward his commanding officer, shall be punished, according to the nature of his offense, by the judgment of a court-martial.’ And so in respect of words written or spoken: ‘Art. 5. Any officer or soldier who shall use contemptuous or disrespectful words against the president of the United States, against the vice-president thereof, against the congress of the United States, or against the chief magistrate or legislature of any of the United States in which he may be quartered, if a commissioned officer, shall be cashiered, or otherwise punished as a court-martial shall direct; if a non-commissioned officer, or soldier, he shall suffer such punishment as shall be inflicted on him by the sentence of a court-martial.’
The general argues entirely, in the statement which has been read, from the premises of his own example. He commences by that: ‘It I were to indulge in wholesale criticisms of the policy of the government, it would demoralize the army under my command, and every friend of his country would call me a traitor. If the officers or soldiers were to indulge in such criticisms, it would weaken the army to the extent of their influence; and if this criticism were universal in the army, it, would cause it to be broken to pieces, the government to be divided, our homes to be invaded, and anarchy to reign. My duty to my government forbids me to indulge in such criticisms; officers and soldiers are not allowed to so indulge, and this course will be sustained by all honest men.’ Assuredly so; and, therefore, such conduct as he reprobates cannot be tolerated on the part of soldiers and military officers.
But General Burnside has overlooked an essential fact in this connection. The articles of war comprise a code for the regulation of soldiers and officers exclusively: that is declared by the first section *882 of the act of congress which ordains them, approved April 10, 1806 [2 Stat. 359]. It must be remembered, also, that those articles constitute an express contract between the government of the United States as one party, and each soldier and each officer as the other party; and are, in law, obligatory as a contract.
This cannot be doubted after reading the famous opinion of Lord Loughborough, C. J., in Grant v. Gould, 2 H. Bl. 69. The soldier is enlisted by his own agreement; he has the articles read to him at that time, and he distinctly swears that he will obey them. Article 10. The officer--every officer--must sign the articles before entering upon his duties. Article 1.
But neither as a statutory regulation, nor as a matter of contract, are citizens of the United States, other than those engaged in the military or the naval service, excluded from the privilege of speaking ever so disrespectfully, or contemptuously, of men in public station. It is, with them, entirely a matter of taste, or of individual discretion.
I know of but a single excepted case: it is when the citizen has been called into the actual service of the United States as one of the militia of the state in which he resides. Then, sir, and for a reason too obvious to require any especial argument, his privilege as a mere citizen is temporarily suspended, and he becomes amenable to the articles of war until discharged from such service.
The constitution expressly authorizes the congress of the United States to ordain this as a part of the law of the land; and it is ordained by congress, accordingly, in the 97 th article: ‘The officers and soldiers of any troops, whether militia or others, being mustered and in pay of the United States, shall, at all times, and in all places, when joined or acting in conjunction with the regular forces of the United States, be governed by these rules and articles of war, and shall be subject to be tried by courts-martial in like manner with the officers and soldiers in the regular forces; save, only, that such courts-martial shall be composed entirely of militia officers.’
I cannot here, without abandoning the line of my argument, especially observe the language employed by congress in this article; and much that I would say has occurred to others, probably, upon hearing it. Beyond the terms of exception thus defined by statute, and in obedience to the constitution of the United States (article 1, § 8, cls. 15, 16), the right of the American people to deliberate upon and freely to speak of what General Burnside calls the ‘policy of the government’ at all times--whether of peace or of war, of safety or of peril, of ease or of difficulty--is a right supreme, and absolute, and unquestionable.
They can exhort each other to impeach the president or any executive officer; to impeach any magistrate of judicial authority; to condemn congressmen and legislators of every description. They can, at pleasure, indulge in criticism, by ‘wholesale’ or otherwise, not only upon ‘the policy’ adopted or proposed by their servants, military as well as civil, but upon the conduct of those servants, in each and every particular, upon their actions, their words, their probable motives, their public characters.
And, in speaking of such subjects, any citizen addressing his fellow citizens, by their consent, in a peaceable assembly, may use invective, or sarcasm, or ridicule, or passionate apostrophe or appeal, or--what is, ordinarily, much better--plain, solid, unostentatious argument. There is no style of rhetoric to be prescribed for the people. They are the masters of every style, and of every art and form of utterance.
General Burnside suggests that ‘the press and public men, in a great emergency like the present, should avoid the use of party epithets and bitter invectives.’ I esteem that as excellent advice on all occasions; but, unfortunately, the general and I must both succumb, with what grace we can, to the choice or fancy of the people. They will render his advice or my advice effectual, if they approve it, by not reading such papers and not listening to such orators as habitually violate or trifle with decorum. There is no other way; there can be no censorship, civil or military, in this regard. That would inevitably, and at once, destroy the liberty of speech and of the press: that presupposes an incapacity of the people to distinguish right from wrong, truth from falsehood, reason from intemperance, or decency from outrage.
And, if we cannot confide in the good sense of the people as to these things, how can we confide in them at all? I know that much is written and spoken every day, and in the most public manner, at which honorable men feel indignant, or, at least, annoyed. But does it really affect the people at large? Does it alienate them from the government under which they live? Does it induce them to think less dearly of their kinsmen, their friends, their neighbors, in military service; or to be unmindful of the toils of any soldier in camp, or on the march, or of his sufferings in the awful day of battle? Does it palsy the ministering hand? Does it prevent the sympathizing tear?
O, sir, no, no! General Burnside errs, and errs greatly, in supposing that. Our people are often excited by some false or foul word; but, by and by, assertion meets contradiction, violence encounters violence; and so, as length, slowly perhaps, but certainly, will justice achieve her victory and conclude the contest.
I regret very much to learn by one paragraph in his statement, that General Burnside cannot appreciate the force of what all *883 the great politicians of this country, in every generation, and with no distinction of parties, have unhesitatingly accepted as the fundamental doctrine of our system: ‘It is said,’ he observes, ‘that the speeches which are condemned, have been in the presence of large bodies of citizens, who, if they thought them wrong, would have then and there condemned them. That is no argument.’
I crave the general’s pardon. That is an argument: it is the whole argument, and it is perfectly conclusive. Let us hear what he can say in opposition: ‘These citizens do not realize the effect upon the army of our country, who are its defenders. They have never been in the field; never faced the enemies of their country; never undergone the privations of soldiers in the field; and, besides, they have been in the habit of hearing their public men speak, and, as a general thing, of approving of what they say.’
It is generally true that the majority of those who attend a public meeting approve the greater part of what is there said: they agreed substantially, if not entirely, before they came-- and they came because they agreed. As to the speaker,--in addition to the fact that much of what is said, in any meeting, is not objectionable,--it should be remembered that his hearers have known him personally, or by reputation, for years; that they have probably voted for him, or, at all events, sustained him; that they admire his character and cherish his good name.
He knows all this; and knows, therefore, that he must speak to them upon the confidence of honorable men. This obligation is not as rigidly observed as it should be; but I can say, as well of my opponents as of my friends, in Ohio, that the consciousness of being trusted by their fellow partisans, together with a real desire to be worthy of such affection, is quite sufficient, ordinarily, to insure an honest, candid, and reasonably temperate discussion of political questions.
I do not say that I agree with the conclusions of every speaker; but I say that he has declared what he honestly believes, and what a large majority of his hearers believed, or wished to believe, at all events, before they heard him. I can say, furthermore, that although it is not usual for an audience to contradict the speaker, they are apt to lose interest in him, and to depart summarily, when they discover that he is inimical to the cause of the country, to its essential glory, to the perpetuity of its free institutions.
But, perhaps, I have not yet sufficiently answered General Burnside’s objection. I ask him, then, whether he means to argue that citizens who have not experienced military service--’never been in the field, never faced the enemies of their country, never undergone the privations of our soldiers’--are, on that account, so devoid of intelligence, so spiritless in patriotism, that they cannot be trusted to discharge their duties at home, as citizens, in the way to which they and their fathers before them, for almost a century, have been accustomed?
If so, what becomes of his other assertion, in a later paragraph, ‘that our people are too far advanced in the scale of religion, civilization, education, and freedom, to allow any power on earth to interfere with their liberties.’ O! but the effect on the soldiers. Well, sir, let us inquire into that. The soldiers have been citizens; they have been in the habit of attending public meetings, and of listening to public speakers. They are not children, but grown men,--stalwart, sensible, and gallant men,--with their hearts in the right place, and with arms ready to strike whenever and wherever the cause of their country demands.
The general assures us of more, even, than this. ‘No man on earth,’ he says, ‘can lead our citizen soldiery to the establishment of a military despotism.’ And are these the men to be discouraged, and, especially, to feel weary in heart or limb,--unable to cope with an enemy in the field,--because Mr. Vallandigham, or any other public speaker, may have said something, at Mount Vernon or elsewhere, with which they do not agree?
The soldiers have not chosen me for their eulogist; but I will say, of my own accord, that they are no such tender plants as General Burnside imagines. They know, exactly, for what they went into the field; they are not alarmed, nor dissatisfied, nor discouraged, because their fellow citizens, at home, attend public meetings, and listen to public speeches, as heretofore; they have no serious misgiving as to the estimation in which they are holden by the people of the Northern and Northwestern states without any distinction of sects, parties, or factions.
Let the officers, and especially those of highest degree, observe their military duties; let them see to it, as General Burnside has well said, and as, I doubt not, he has well done, so far as his authority extends, that the soldiers are ‘fed, clad, and armed,’ and kept ‘in the best possible condition’ for service. Allow them to vote as they please; allow them to read whatever newspapers they like; cease any attempt to use them for a partisan advantage; I do not accuse General Burnside of this,--but others, and too many, have been guilty of the grossest tyranny in regard to it.
Protect the soldier against the greed of jobbers and knavish contractors,--against dealers in shoddy, in rotten leather, in Belgian muskets, in filthy bread and meat,--against all the hideous cormorants which darken the sky and overshadow the land in times of military preparation. Let the party in administration discharge these duties; and my word for it, sir, that the volunteers from Ohio, from Indiana, from Illinois, from every other state, will do and dare as much, at least, as the best and bravest soldiers in the world can accomplish.
One more commentary on the statement of General Burnside, and it shall be as brief as possible. Undoubtedly, as he observes, *884 a great responsibility attaches to public men and to the conductors of the public press; but their responsibility is toward the people, and not toward him. ‘They must not,’ he declares, ‘they must not use license, and plead that they are exercising liberty.’ But every definition of ‘liberty’ excludes the idea of his censorship; so that the distinction which he has attempted neither expresses nor admits of any imaginable difference. I might say more, and must more, of this extraordinary statement; but, having disposed of its principal suggestions, I leave the rest unanswered.
The ‘charge’ against Mr. Vallandigham, as defined by Captain Cutts, the judge advocate, is this: ‘Publicly expressing, in violation of general orders No. 38, from headquarters department of the Ohio, his sympathy for those in arms against the government of the United States, declaring disloyal sentiments and opinions, with the object and purpose of weakening the power of the government in its efforts to suppress an unlawful rebellion.’
But the ‘charge’ is only a conclusion supposed, or invented, by the judge advocate, from the premises of fact alleged in the specification. I have merely to say, therefore, that it assumes, as indisputable, an authority at ‘headquarters department of the Ohio’ to enact a law abridging the freedom of speech; and this in palpable defiance of the constitution of the United States.
Let us proceed, however, to the language of the specification: ‘In this, that the said Clement L. Vallandigham, a citizen of the state of Ohio, on or about the first day of May, 1863, at Mount Vernon, Knox county, Ohio, did publicly address a large meeting of citizens, and did utter sentiments in words, or in effect, as follows.’ One or the other—‘in words, or in effect’--as the judge advocate, at his pleasure, may regard equivalents.
And here follows no connected form of speech, but merely disjointed phrases and sentences, taken from the context of a public address, and with no relation to what preceded, or accompanied, or otherwise explained or mitigated them. Is that the style of accusation by which, in this country, or in any civilized country, a man is put in peril of his life or his liberty? Is that the way in which my learned friend, the district attorney of the United States, would think of indicting a prisoner?
But I will read the sentences which, ‘in words, or in effect,’ are so eminently disloyal. Mr. Vallandigham, as we are told, declared ‘the present war’ to be ‘a wicked, cruel, and unnecessary war.’ And so President Lincoln, by one of his proclamations, declares it ‘unnecessary’ as well as injurious; and is not every ‘unnecessary’ war both cruel and wicked? I do not say on which side, or to which of the two parties, a condemnation thus grievous should be wholly, or for the most part, applied; I will speak to that question, if at all, when I have not in charge the interests of an imprisoned client.
But Mr. Vallandigham said, in addition, that it is ‘a war not being waged for the preservation of the Union.’ Observe those words carefully; they do not mean that ‘the preservation of the Union’ is not the avowed object, nor even that the administration may not so intend, but only that the war is ‘not being waged’ in such a manner as to accomplish the object. Again, as we are told, he declared it to be ‘a war for the purpose of crushing out liberty and erecting a despotism.’ Well, if the proceedings in his case, in virtue of general orders No. 38, are to become a precedent for other cases, and to be sustained by judicial authority, that declaration will prove to be substantially true.
But he said, also, that it is ‘a war for the freedom of the blacks, and the enslavement of the whites.’ We know that President Lincoln has, by two proclamations, dated September 22, 1862, and January 1, 1863, undertaken, ‘as a fit and necessary war measure,’ to emancipate millions of black slaves; whether he intends, if possible, to enslave white men, will be ascertained when he shall have acted on this particular case.
Mr. Vallandigham said, furthermore, as the judge advocate assures us, ‘that, if the administration had so wished, the war could have been honorably terminated months ago.’ That allegation may be true; I have no means, except from what is alleged subsequently, of deciding whether it be true or false. Nor do I find myself much enlightened by the next sentence imputed to Mr. Vallandigham: that ‘peace might have been honorably obtained by listening to the proposed intermediation of France.’ I do not know what terms, if any, the emperor of the French suggested; but they would have to be very advantageous, as well as unmistakably honorable, before I would consent to his interference, or the interference of any other monarch, with the affairs of our distracted republic. And yet, if Mr. Vallandigham thinks otherwise, he has the same right to declare and to maintain his opinion as I have to maintain or to declare mine.
But he made another accusation, and of much more serious importance: he said ‘that propositions by which the Southern states could be won back, and the South be guaranteed their rights under the constitution, had been rejected, the day before the late battle at Fredericksburg, by Lincoln and his minions,’--’meaning thereby,’ as the judge advocate kindly informs us, ‘the president of the United States and those under him in authority.’ I never heard that it was actionable, at common law, to say to one man, orally, that he was the minion of another; and, are less, that it could be a matter of state prosecution.
As to the rest, the accusation is one of fact,--positive, distinct, with addition of time and circumstances. Is it true, or is it false? Sir, I do not know; but I do know that that is a vital question to the American people. Was it for making such an accusation that Mr. *885 Vallandigham has been arrested; and is it by imprisoning him, or otherwise stopping his mouth, that Mr. Lincoln would answer to such an accusation in the face of his countrymen, of the civilized world, of the tribunal of God and of history? As to General Burnside, whose personal sincerity in these proceedings, as well as at the battle of Fredericksburg, I do not intend to question, what living man is more interested to have the truth, or the falsehood, of that accusation publicly ascertained?
The next sentence imputed to Mr. Vallandigham, by the specification, is this: ‘That the government of the United States were about to appoint military marshals, in every district, to restrain the people of their liberties, to deprive them of their rights and privileges.’ That refers to the appointment of a provost marshal in each congressional district, as provided in the act of March 3, 1863, commonly called the ‘Conscription Act.’ I have no time, at present, to argue whether the act be, or be not, open to such interpretation; but I have to say this: Mr. Vallandigham not only voted against it, while a representative in the congress of the United States, but characterized it more severely, more harshly, more bitterly, in a speech delivered to the house of representatives, on the 23 rd day of February, 1863.
Did the house regard his words, on that occasion, as words, which, by the dictionary of General Burnside, ‘must now amount to treason’? He was not expelled; he was not censured; he was not even accused of having overstepped the limits of his privilege as a representative; but when he returned to his constituents (for every representative in congress, although chosen by the people of a district, represents the whole state) he is not allowed, in giving them an account of his stewardship, to repeat such language as he uttered, without any objection, in the hearing of the president, of the cabinet, of the two houses of congress, of the general commanding the whole army, of the army of the Rappahannock almost immediately at hand.
Then, sir, as we are told, Mr. Vallandigham spoke of general order No. 38, headquarters department of the Ohio, as ‘a base usurpation of arbitrary authority.’ Well, except the first adjective, which is a flower of speech, in reference to which, considering his own style of rhetoric, in the charge and specification before us, I should hardly have expected any complaint on the part of the judge advocate, those words are literally true. It is authority usurped, because it is contrary to the constitution and laws of the land; and that it is arbitrary, ex vi termini, appears from the whole tenor of General Burnside’s statement. But Mr. Vallandigham invited his ‘hearers to resist the same.’ Ah! and how? By telling them to take up arms against it? to fall into ranks for the purpose of obstructing its execution? by committing any act of violence or disorder whatsoever?
O, No, sir! but ‘by saying’ that ‘the sooner the people inform the minions of usurped power that they will not submit to such restrictions upon their liberties the better.’ To give this information by their resolutions in primary meetings, by the voices of their favorite orators, by their votes in the ballot box. Nothing else is alleged; nothing else is pretended; nothing else could reasonably have been imagined. I quote the remaining sentences: ‘Declaring ‘that he was, at all times, and upon all occasions, resolved to do what he could to defeat the attempts now being made to build up a monarchy upon the ruins of our free government.’ Asserting ‘that he firmly believed, as he said six months ago, that the men in power are attempting to establish a despotism in this country, more cruel and more oppressive than ever existed before.’’
These are obviously conclusions of the speaker--correctly or incorrectly drawn--from premises of which little, very little indeed, is narrated by the specification. I do not undertake to say, and I cannot say, at present, whether such conclusions are correct or incorrect; but what are they--and, in asking this question, I would lay my hand, if possible, upon the heart of every freeman--what are they but the impassioned appeals of a sincere, conscientious, honorable, and, if you please, over-vigilant citizen?
Granted-- if you will have it so--that he is in error, and greatly in error: I do not ask you to approve his conclusions, or in any manner to accept his opinions; but I do ask you, in all truthfulness, whether these words bear any taint of treason or disloyalty? They were intended, most evidently, to arouse the people to a sense of the vast peril in which all of us now stand; and, although they are startling, and seem very bitter, should we not err upon the side of jealousy rather than upon the side of laxity and too much confidence in our rulers, at a time when, month by month, day by day, the Union of our fathers, the constitution by which that Union was ordained, and the liberty of which the constitution and the Union were intended as perpetual guarantees, are fading into a dim, a broken, and a most sorrowful vision?
Mr. Judge Advocate appears to have felt the difficulty of sustaining his ‘charge’ upon the words, simply, as quoted in his specification. He has added to them, therefore, this remarkable conclusion: ‘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.’ Here is what lawyers would call the scienter [intent] of an offense,--the imputation, that is, of guilty knowledge.
But, clearly, unless the words themselves, simply as spoken, have the effect of aiding, comforting, and encouraging those in arms against the government, and of inducing such *886 as hear them, at any time, not only to distrust the government, but, also, to sympathize with those in arms against it, or, at all events, to resist the laws of the land, no guilt ever existed, and there could be, of course, no knowledge of any such guilt.
Now, as to those in arms, not one of them attended the meeting at Mount Vernon, or would have known of Mr. Vallandigham’s speech on that occasion, but for the arrest and imprisonment which ensued. In the next place, although his language may have induced (as he had the perfect right, if he could, to induce) all his hearers to distrust the persons who are now administering the government of the United States, and to seize the first constitutional opportunity of putting other persons into their places, I cannot, for the life of me, discover one syllable directed against the government as such, and far less--that being necessary, also, by the terms of the judge advocate’s conclusion--inducing the slightest degree of sympathy for those who, anterior to the transactions of which Mr. Vallandigham spoke,-- and without any regard to the grievances which he enumerated, but wholly for excuses of their own, and manifestly against his wishes, had openly and formidably arrayed themselves in rebellion.
And so, even admitting general order No. 38 to be, as certainly it is not, a part of the law of the land, no resistance whatsoever was suggested except by the ordeal of a peaceable election. The burden of complaint, therefore, as to Mr. Vallandigham, is, that he opposes, whether for a good reason or a bad one, the prosecution of this war; that he is greatly dissatisfied with the manner in which it has been conducted; that he believes, with or without sufficient evidence, that it might have been brought to an ‘honorable’ conclusion--’by which the Southern states could be won back’--months ago; and that, consequently, he is in favor of electing other men than those present in office to administer our public affairs.
That is all; standing upon the very words quoted in Captain Cutt’s specification--garbled even as they are--I repeat sir, that is all. And for the supposed offense of entertaining such opinions, and of declaring them to an audience of his fellow citizens, by their request, at Mount Vernon, has Mr. Vallandigham experienced the tender mercy of general orders No. 38; the outer and inner doors of his dwelling house have been violently battered and broken, between midnight and day dawning, by a multitude of soldiers, without any warrant or even color of legal process; his person has been seized by overpowering numbers, in the presence of his terrified family, and secretly hurried to this city, and here confined in a military prison, in order to his trial by a ‘commission’ of army officers, and according to some hitherto unknown course of judicial procedure. And this, America, is thy boasted freedom! Verily, to accept the consolation of General Burnside, thou needst have no ‘fear’ of losing it.
Since what time, I would inquire, has it become an offense of such magnitude for any citizen to propose the cessation of a war which he believes to be unnecessary and injurious? I am not advised of any alteration of our federal constitution since the 22 nd of February, 1848, when the general assembly of Ohio adopted resolutions denouncing President Polk for his prosecution of the war against Mexico, and calling upon congress to withhold further supplies of money and of men. I will read those resolutions as they appear in the statute book (46 Loc. Laws, p. 299):
‘That the state of Ohio repudiates, as a libel upon the constitution of the United States, the degrading and pernicious dogma which asserts that when the nation is once involved in a war with a foreign country, no matter by what means or for what ends, it is the prerogative of the president to determine the purposes for which it shall thenceforth be carried on, and the measure of its duration.
That congress does possess, and may exercise, the right to interfere with this kingly attribute when asserted or claimed by the president; and that it can never be the duty of the representatives of the states and of the people tamely and submissively to bow to the dictates of executive will, and humbly to subserve its behests by transcribing into the form of legal enactments the imperious requisitions of the president for supplies of money and of men.
That when an administration shall have become so reckless of the moral sentiment of the nation that, lured by the lust of personal or even of national aggrandizement, it avowedly prosecutes and procrastinates a war for the purpose of wringing from a reluctant adversary, already prostrate and in the dust, the whole or any portion of his rightful territory, it becomes the imperative duty of congress, upon the failure for that purpose of all other constitutional means, to put a stop to the effusion of blood by withholding all supplies for the further prosecution of the war; and doubly imperative does that duty become when, as in the case of the present contest with Mexico, the war was begun for questionable objects, by a most palpable executive usurpation of power, and, more especially, when the acquisition of the coveted territory would most fearfully threaten the disruption of the Union itself.’
War existed then, as it exists now; the same bitterness of crimination and recrimination prevailed; designs at once arbitrary and unconstitutional were imputed to those in power by their political opponents, and were answered, as at present, by charges of treason, disloyalty, and so forth. But no man was arrested, or even called to account for his opinions, by the civil, and, far less, by the military power.
How is it possible--I would ask General Burnside, or his counsel, in view as well of *887 the statement which has been read as of the order (No. 38) therein mentioned--how is it possible that words, merely as such, should ‘amount’ to treason? The crime requires an overt act; and not only must the particular act be charged in the indictment, but it must be proven, as charged, by the concurrent oath of two witnesses. Jefferies told the jury in Sidney’s Case, 3 State Tr. 817, that writing a letter was an overt act, ‘sufficient to prove a man guilty of high treason,’ for that to write is to act,-- ‘scribere est agere,’--but even he had not the audacity to pretend that words spoken would, by themselves, be sufficient.
Sir Matthew Hale, discoursing upon the statute of treason (25 Edw. III.), says: ‘Regularly, words, unless they are committed to writing, are not an overt act within this statute; and the reason given is because they are easily subject to be mistaken, or misapplied, or misrepeated, or misunderstood by the hearers. And this appears by those several acts of parliament which were temporary only, or made some words of a high nature to be but felony. The statute of 3 Hen. VII. c. 14, makes conspiring the king’s death to be felony; which it would not have done if the bare conspiring, without an overt act, had been treason.’ 1 Hale, P. C. 11, 112.
Again: ‘Words may expound an overt act to make good an indictment of treason of compassing the king’s death; which overt act possibly, of itself, may be indifferent, and unapplicable to such an intent. And, therefore, in the indictment of treason, they may be joined with such an overt act, to make the same applicable, and expositive of such a compassing.’ Id. 115.
To this effect, only, is the instruction of Lord Chief Justice Holt to the jury in the Case of King, 4 State Tr. 593. I read now from the Institutes of Sir Edward Coke:
‘Divers latter acts of parliament have ordained that compassing, by bare words or sayings, should be high treason; but all they are either repealed or expired. And it is commonly said that bare words may make an heretick, but not a traytor without an overt act. And the wisdome of the makers of this law (25 Edw. III.) would not make words only to be treason; seeing such variety amongst the witnesses are, about the same, as few of them agree together.’ 3 Inst. 14.
And he glorifies the statute of 1 Mary, Sess. 1, c. 1, as declaring the true intent of the statute of 25 Edw. III. on this subject: that there must be an overt act, and not merely words,--per apertum factum, non per apertum dictum.
Sir William Blackstone says:
‘How far mere words spoken by an individual, and not relative to any treasonable act or design then in agitation, shall amount to treason, has been formerly matter of doubt. We have two instances, in the reign of Edward the Fourth, of persons executed for treasonable words; the one a citizen of London, who said he would make his son heir of the Crown, being the sign of the house in which he lived; the other a gentleman whose favorite buck the king killed in hunting, whereupon he wished, it horns and all, in the king’s belly. These were esteemed hard cases; and the Chief Justice Markham rather chose to leave his place than assent to the latter judgment.
But now it seems clearly to be agreed that, by the common law and the statute of Edw. III. words spoken amount only to a high misdemeanor, and no treason. For they may be spoken in heat, without any intention, or be mistaken, perverted, or misremembered by the hearers; their meaning depends always on their connection with other words and things; they may signify differently even according to the tone of voice with which they are delivered, and sometimes silence itself is more expressive than any discourse.
As, therefore, there can be nothing more equivocal and ambiguous than words, it would, indeed, be unreasonable to make them amount to high treason. And, accordingly, in 4 Car. I., on a reference to all the judges, concerning some very atrocious words spoken by one Pyne, they certified to the king that, though the words were as wicked as might be, yet they were no treason; for, unless it be by some particular statute, no words will be treason.’ 4 Bl. Comm. 80.
And Sir Michael Foster, agreeing to the same doctrine, thus comments on two statutes of Queen Anne’s time (4 Anne, c. 3, and 6 Anne, c. 7) for the punishment of such as ‘maliciously and directly, be preaching, teaching, or advised speaking,’ should deny her royal title:
‘1. The positions condemned by them had as direct a tendency to involve these nations in the miseries of an intestine war, to incite her majesty’s subjects to withdraw their allegiance from her, and to deprive her of her crown and royal dignity, as any general doctrine and declaration, not relative to actions or designs, could possibly have; and yet, in the case of bare words, positions of this dangerous tendency, though maintained maliciously, advisedly, and directly, and even in the solemnities of preaching and teaching, are not considered as overt acts of treason.
2. In no case can a man be argued into the penalties of the acts by inferences and conclusions drawn from what he hath affirmed. The criminal position must be directly maintained, to bring him within the compass of these acts.
3. Nor will every rash, hasty, or unguarded expression, owing, perhaps, to natural warmth, or thrown out in the heat of disputation, render any person criminal within these acts; the criminal doctrine must be maintained maliciously and advisedly.
Such caution did the legislature use in framing these statutes, made in the zeal of the times--a most laudable zeal it was--for purposes of no less importance than the security of her then majesty’s person and government, and of the succession to the crown in his present majesty’s royal house--a caution formerly used in similar cases, and not unworthy of imitation in framing future acts of the like kind, if any such shall be thought necessary, and which may serve as a faithful monitor in the conduct of prosecutions for words or writings supposed to be treasonable, but not relative to *888 any treasonable measure then on foot, or intended to be taken.’ Fost. High Treason, c. $1, § 7.
Sidney was prosecuted upon the clause of the English statute (25 Edw. III.) which defines compassing of the king’s death; and, as appears from the language of Hale, Coke, and Blackstone, already quoted, it was only in cases arising upon that clause--few as the cases are, and of no authority--that even the worst judges, in the very worst times, pretended to regard the speaking of words as an overt act of treason.
Our federal constitution (article 3, § 3) employs this plain language: ‘Treason against the United States shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort. No person shall be convicted of treason, unless on the testimony of two witnesses to the same overt act, or on confession in open court.’ Two definitions are intended here, and both taken from the English statute: ‘First, levying war; second, adhering to public enemies, giving them aid and comfort. As to the latter, it has no reference to any rebellion or insurrection; but only applies in a time of war with some other nation.
So it was decided by this court in Chenoweth’s Case [unreported], at April term, 1862, after examining all the authorities, English and American, and ascertaining them to be unanimous on the subject. At present, therefore, treason cannot be committed against the United States in any other manner than by ‘levying war’ against them. U. S. v. Hoxie [Case No. 15,407]. I do not allege that each conspirator must have joined the warlike array; but I do allege that no prisoner can be convicted, or even charged, except by proving, or charging, what the law denominates an ‘overt’ act.
And what are such acts, in legal contemplation, Mr. Justice Foster has clearly defined in his Discourse of High Treason (chapter 2, § 8):
‘The joining with rebels in an act of rebellion, or with enemies in acts of hostility, will make a man a traitor; in the one case, within the clause of levying war; in the other, within that of adhering to the king’s enemies.’
‘Furnishing rebels or enemies with money, arms, ammunition, or other necessaries, will, prima facie, make a man a traitor. But if enemies or rebels come with a superior force, and exact contributions, or live upon the country at free quarter, submission in these cases is not criminal.’
‘And the bare sending money or provisions, except in the case just excepted, or sending intelligence to rebels or enemies, which, in most cases, is the most effectual aid that can be given them, will make a man a traitor, though the money or intelligence should happen to be intercepted. For the party, in sending, did all he could: the treason was complete on his part, though it had not the effect he intended.’
As to this, however, the learned author next intimates some degree of uncertainty; inasmuch as in all the reported cases, before his time, the prisoners had been charged, also, with compassing the queen’s death. Again, same chapter (sections 9-11):
‘An assembly armed and arrayed in a warlike manner, for any treasonable purpose, is bellum levatum,’--war levied,-- ‘though not bellum percussum.
Listing and marching are sufficient overt acts, without coming to a battle or action. So, cruising on the king’s subjects, under a French commission, France being then at war with us, was holden to be adhering to the king’s enemies, though no other act of hostility was laid or proved.
Attacking the king’s forces, in opposition to his authority, upon a march, or in quarters, is levying war against the king. But, if, upon a sudden quarrel, from some affront given or taken, the neighborhood should rise and drive the forces out of their quarters, that would be a great misdemeanor, and, if death should ensue, it may be felony in the assailants; but it will not be treason, because there was no intention against the king’s person or government.
Holding a castle or fort against the king or his forces, if actual force be used in order to keep possession, is levying war. But a bare detainer, as suppose by shutting the gates against the king or his forces, without any other force from within, Lord Hale conceiveth (1 P. C. 146), will not amount to treason. But, if this be done in confederacy with enemies, or rebels, that circumstance will make it treason; in the one case, under the clause of adhering to the king’s enemies; in the other, under that of levying war. So, if a person, having the custody of a castle or fort, deliver it up to the rebels, or enemies, by treachery and in combination with them, this is high treason within the act: it the former case, it is levying war; in the latter, it is adhering to the king’s enemies.’
Once more, in the same chapter (section 13):
‘In prosecutions for these treasons, as well as for that of compassing the death of the king, an overt act of the treason must, as I have already observed, be charged in the indictment, and proved.’
No act of less degree than those just enumerated, and no act which does not immediately relate to an assemblage of men, in warlike array, for the purpose of subverting the government, or, by such means, resisting its authority, can amount to the levying of war. So said the supreme court of the United States in the Case of Bollman, 4 Cranch [8 U. S.] 126:
‘However flagitious may be the crime of conspiring to subvert, by force, the government of our country, such conspiracy is not treason. To conspire to levy war, and actually to levy war, are distinct offenses. The first must be brought into open action by the assemblage of men for a purpose treasonable in itself, or the fact of levying war cannot have been committed.
So far has this principle been carried that, in a case reported by Ventris, and mentioned in some modern treatises on criminal law, it has been determined that the actual enlistment of men to serve against the government does not amount to levying *889 war.
It is true that, in that case, the soldiers enlisted were to serve without the realm, but they were enlisted within it; and, if the enlistment for a treasonable purpose could amount to levying war, then war had been actually levied. It is not the intention of the court to say that no individual can be guilty of this crime who has not appeared in arms against his country. On the contrary, 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.
But there must be an actual assembling of men for the treasonable purpose to constitute a levying of war.’
‘To complete the crime of levying war against the United States, there must be an actual assemblage of men for the purpose of executing a treasonable design. In the case now before the court, a design to overturn the government of the United States in New Orleans, by force, would have been unquestionably a design which, if carried into execution, would have been treason; and the assemblage of a body of men for the purpose of carrying it into execution would amount to levying of war against the United States. But no conspiracy for this object, no enlisting of men to effect it, would be an actual levying of war.’ [Ex parte Bollman], 4 Cranch [8 U. S.] 127.
Mr. Chief Justice Marshall, who delivered this opinion, explained it, afterward, upon the trial of Aaron Burr, before the circuit court, at Richmond, August 31, 1807: ‘Some gentlemen have argued as if the supreme court had adopted the whole doctrine of the English books on the subject of accessories to treason. But, certainly such is not the fact. Those only who perform a part, and who are leagued in the conspiracy, are declared to be traitors. To complete the definition, both circumstances must concur.
They must perform a part, which will furnish the overt act, and they must be leagued in the conspiracy. The person who comes within this description, in the opinion of the court, levies war.’ 2 Burr, Tr. p. 406 [Case No. 14,693].
And he proceeded, at length, to demonstrate that even ‘the advising or procurement’ of treason, unless the party had also joined the warlike array, or done some overt act in pursuance of the conspiracy, would not amount to levying war. 2 Burr, Tr. 436-439 [Case No. 14,693].
How superfluous, then, is that portion of general orders No. 38 which denounces the penalty of death for an overt act of treason! The same penalty has been denounced by the constitution of the United States, and by the laws of congress in pursuance of it; only, instead of a military arrest, of charges and specifications, of a trial by captains, lieutenants, or other officers, and upon rules of evidence which are in effect no rules at all, the party accused must be arrested by a warrant in due form, upon probable cause supported by oath or affirmation--must be indicted by a grand jury of the district in which the crime is supposed to have been committed--must be tried in the circuit court of the United States for that district, by a petit jury of his countrymen, and according to the rule of evidence which the constitution itself has prescribed.
For so the constitution (article 3, § § 2, cl. 3) expressly requires: ‘The trial of all crimes, except in cases of impeachment, shall be by jury; and such trial shall be held in the state where the said crimes shall have been committed; but when not committed within any state, the trial shall be at such place or places as the congress may, by law, have directed.’
As to the residue of general orders No. 38, including ‘the habit of declaring sympathies for the enemy,’ if such a ‘habit’ ever existed in this community or neighborhood, I must say, once for all, that the acts or utterances intended to be embraced, whatever their moral complexion, or how objectionable so-ever in any respect, do not and can not amount to treason. The constitution of the United States forbids that as plainly as language can be written. And the constitution is full of wisdom in this regard. It does not even entrust to congress the definition of a crime so perilous, so easily imputed, so apt to be imputed in times of great disorder. It even restrains congress in prescribing the measure of punishment. [FN4]
The bloody experience of their English ancestors, commencing with the civil war between the adherents of Stephen and those of the Empress Matilda, before the middle of the twelfth century, and extending thence, with brief intermissions, almost to the epoch of American Independence, had sufficiently admonished the people of the eleven states which consented to the establishment of a Union consecrated to civil and religious liberty, that they must incorporate in its organical law, as things unalterable and unavoidable, in any circumstances, as well the provisions of the statute defining treason (25 Edw. III.), as the provisions of Magna Charta and of the habeas corpus act.
I call upon the writers of the Federalist to bear me witness of this:
‘As treason may be committed against the United States, the authority of the United States ought to be enabled to punish it; but, as new-fangled and artificial treasons have been the great engines by which violent factions, the natural offspring of free governments, have usually wreaked their alternate malignity on each other, the convention have, with great judgment, opposed a barrier to this peculiar danger by inserting a constitutional definition of the crime, fixing the proof necessary for conviction of it, and restraining the congress, even in punishing it, from extending *890 the consequences of guilt beyond the person of its author.’ Federalist, No. 43, written by Madison.
Such admonition, also, the sages of the common law had previously, and most heartily, delivered. Lord Chief Justice Hale, after speaking of the diversities of judicial opinion before the statute of 25 Edw. III., and the consequent unhappy condition of the people, says:
‘Now, although the crime of high treason is the greatest crime against faith, duty, and human society, and brings with it the greatest and most fatal dangers to the government, peace and happiness of a kingdom or state, and therefore is deservedly branded with the highest ignominy, and subjected to the greatest penalties that the law can inflict; yet, by these instances, and more of this kind that might be given, it appears:
First, how necessary it was that there should be some fixed and settled boundary for this great crime of treason, and of what great importance the statute of 25 Edw. III., was in order to that end.
Second, how dangerous it is to depart from the letter of that statute, and to multiply and enhance crimes into treason by ambiguous and general words, as accroaching of royal power, subverting of fundamental laws, and the like.
And, third, how dangerous it is by construction and analogy to make treasons where the letter of the law has not done it. For such a method admits of no limits or bounds, but runs as far as the wit and invention of accusers, and the odiousness and detestation of persons accused, will carry men.’ 1 Hale, P. C. 86, 87.
And Lord Chief Justice Coke tells us (3 Inst. 2) that the parliament which enacted the statute was called, on that account, the ‘Blessed Parliament,’--’Benedictum Parliamentum.’ But, sir, what becomes of our safeguards--what avails the experience of seven hundred years--where is that constitution which declares itself to be the supreme law of the land--if a major general commanding the department of the Ohio, or any other officer, civil or military, can create and multiply definitions of treason at his pleasure?
The ancient Ruminalis put forth new leaves when all men supposed it to be dying; [FN5] whether the tree of American liberty will be able to supply the place of that splendid foliage which has been stripped from its branches, and scattered beneath our feet, by this rude blast of arbitrary and unlimited authority, is a question hereafter to be determined. That question does not concern my distinguished client any more than it concerns every other citizen.
The partisans in power to-day will be the partisans in opposition tomorrow; then military command will be shifted from those who oppress to those who have been oppressed; and so, with the mutations of political fortune, must the personal rights and rights of property, and even the lives, of all be in constant hazard. I pray that my learned friends upon the other side will consider this in time; that they will use their influence not only with the defendant, but with those to whom at present he is amenable, to revoke--ere it be too late--the dreadful flat of tyranny, of hopeless confusion, of ultimate anarchy, which has been sounded in our midst.
FN4 ‘Congress shall have power to declare the punishment of treason; but no attainder of treason shall work corruption of blood, or forfeiture, except during the life of the person attained.’
FN5 ‘Eodem anno (A. U. C. 811) Ruminalem arborem in comitio, quae octingentos et quadraginta ante annos Remi Romulique infantiam texerat, mortuis ramalibus et arescente trunco deminutam prodigii loco habitum est, donec in novos fetus revivesceret.’ Tacitus: Ann. lib. XIII. 58.
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The rights of individual citizens, as declared in the first eight amendments to the constitution of the United States, had not only been secured, but were perfectly understood, at the time when the thirteen colonies of North America revolted from British dominion. They were rights which every colonist had brought with him, as inalienable, to the shores and wildernesses of the Western hemisphere.
The federal constitution being only a delegation of specific powers by the people of the several states, and not the creation of an unlimited government, its authors deemed a bill of rights unnecessary and superfluous. But, with that jealousy which ought ever to distinguish freemen, our ancestors required the addition of ten amendments; and these were added, at the first session of the First congress, without any opposition.
Two other of those amendments I proceed next to consider:
‘No person shall be held to answer for a capital or otherwise 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.’ Article 5.
‘In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial by an impartial jury of the state or district wherein the crime shall have been committed (which district shall have been previously ascertained by law) and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.’ Article 6.
These two articles (amendments) were added only from abundant caution; for, as we have seen, the original text of the constitution (article 3, § 2, cl. 3), expressly declares: ‘The trial of all crimes, except in cases of impeachment, shall be by jury; and such trial shall be held in the state where the said crimes shall have been committed,’ etc. But the judgment in cases of impeachment extends no further than to a removal from office, and, if necessary, a disqualification to hold any other office: so that, in effect, as the constitution *891 originally was, no man’s life or limb, or even his liberty, could have been legally endangered except by the verdict of a jury, and the sentence of a court upon that verdict.
Nevertheless, and, as I have said, from abundance of caution, these other declarations of rights were added by amendment:
I. No man shall be put on his defense for any capital or infamous crime except by the indictment or presentment of a grand jury of the district wherein such crime is supposed to have been committed. This, too, is the result of a long and very memorable struggle in the experience of our English ancestors. It takes away the power of prosecuting for treason, felony, and such like offenses, by information of the attorney general, or at the relation of any private individual. That was the process by means of which the court of the star chamber inflicted such oppression and misery; and it was for their servile habit of employing that process, at the expense of the privileges of the people, that two infamous lawyers, Empson and Dudley, were doomed to death.
II. No man shall twice be put on trial, ‘in jeopardy of life or limb, for the same offense.’ By this, therefore, as at common law, a verdict of acquittal is conclusive; it cannot be set aside by the judges, nor altered, reviewed, or questioned in any manner. But such is not the rule of military law. The sentence of a court-martial, whether it be of acquittal or of conviction, may be disregarded, wholly or in part, by the commanding officer. It has no validity without his confirmation. He can order a prisoner once acquitted to be again tried, upon the same charge and specification, by the court which acquitted him, or by a court composed of other officers. A military sentence, therefore, is the sentence of the military commander; the proceedings of the court-martial being only intended to inform his judgment or conscience, and so enable him to decide upon the particular case.
III. No man shall be compelled to be a witness against himself in any criminal prosecution. IV. No man shall be deprived of his life, liberty, or property, except by due process of law. This repeats the twenty-ninth chapter of Magna Charta, as expounded by Lord Coke (2 Inst. 50), and, after him, by all the writers, English and American, upon constitutional construction: ‘Nisi per Legem Terrae. The words ‘law of the land’ import due process of law,--that is, by indictment or presentment, of good and lawful men where such deeds be done in due manner, or by writ originall of the common law.’ Again: ‘Without being brought in to answer, but by due process of the common law.’ ‘No man be put to answer without presentment before justice, or thing of record, or by due process, or by writ original according to the old law of the land.’
V. No man’s property shall be taken upon the excuse or pretense of a public necessity, without compensating him for its loss or deterioration.
The sixth article of amendment, which I have quoted also, prescribes the essential requisites of a trial upon indictment or presentment:
1. It must be a public trial as well as a speedy one.
2. It must be by an impartial jury of the state and the district wherein the crime is alleged to have been committed.
3. The prisoner must be informed of the nature and cause of the accusation,--that is to say, of what crime he has been accused, and of the particular transaction, with time, place and material circumstances, which is supposed to constitute that crime.
4. He must be confronted, or brought face to face, while they are testifying, with the witnesses against him.
5. He must have, on demand, such a writ as will compel any person, anywhere within the jurisdiction of the United States, to attend the trial and give testimony in his favor.
6. He must have, as a matter of absolute right, the assistance of counsel learned in the law.
These, except the third, fourth, and fifth, are not the rules of procedure in military tribunals. It is at the discretion of the commanding officer when a prisoner shall be arraigned for trial; and, at his discretion, also, or that of the court-martial, whether a trial shall be public or secret. Counsel are not allowed to address the court in defense of a prisoner, or upon any question of evidence; they are not even allowed to be present except by indulgence or special favor.
The greatest objection yet remains; a trial by court-martial is not a trial by jury, nor its equivalent. The court may consist of thirteen officers, or it may consist of only five; and those officers are chosen by the military commander without any regard to the question of their residence in the state or district wherein the crime is alleged to have been committed. The prisoner has no peremptory challenge. But, sir, why do I waste time on so plain a distinction? Every man knows that trial by jury is a form peculiar to the common law; and that it has no equivalent in any other form of procedure, or in any other system of jurisprudence.
I have already explained the cases of exception allowed by these two articles,--’cases arising in the land or naval forces, or in the militia when in actual service in time of war or public danger,’--as well as the reason which dictated such exceptions. I might say, in addition, that the rules and articles of war do not assume to punish, as a crime, any act which is declared to be criminal by the ordinary law of the land. They define what are known as military offenses, or offenses in violation of discipline and the good order of the service.
Even an officer or a soldier cannot be tried by court-martial for a crime against the laws of his country: he must be delivered to the civil magistrate and tried by a court of civil judicature. So the thirty-third article of war distinctly provides: ‘When any commissioned officer or soldier shall be accused of a capital crime, or of having used violence or committed any offense against the person or property of any citizen of any of the United States, such as is punishable *892 by the known laws of the land, the commanding officer and officers of every regiment, troop, or company, to which the person or persons accused shall belong, are hereby required, upon application duly made by or in behalf of the party or parties injured, to use their utmost endeavors to deliver over such accused person or persons to the civil magistrate, and, likewise, to be aiding and assisting to the officers of justice in apprehending and securing the person or persons so accused, in order to bring him or them to trial. If any commanding officer or officers shall willfully neglect, or refuse upon the application aforesaid, to deliver over such accused person or persons to the civil magistrates, or to be aiding and assisting to the officers of justice in apprehending such person or persons, the officer or officers so offending shall be cashiered.’
Instead of which General Burnside has undertaken to extend the jurisdiction of a court-martial over citizens not in military service, and to arrest, accuse, try, and condemn them for offenses alike unknown to the articles of war and to the ordinary laws of the land. That all the proceedings of the court are void; that every officer who participates in them, including the members of the court and the judge advocate, and, also, the provost marshal who executes any such sentence, is liable to an indictment as well as to an action for damages: these are propositions so clearly established--so entirely indisputable--that I should not conceive it decorous, in other circumstances, to urge them upon your honor’s attention. Wise v. Withers, 3 Cranch [7 U. S.] 331, was an action of trespass, vi et armis, for entering the plaintiff’s house, and taking away his goods.
The defendant justified as the collector of a fine imposed on the plaintiff by sentence of a court-martial for not serving as a militiaman; to which the plaintiff replied that he was a justice of the peace for Alexandria county, in the District of Columbia, and, as such, exempted by statute from service in the militia. The circuit court sustained a demurrer to this replication, as insufficient, and thereupon gave judgment in favor of the defendant.
On writ of error by the plaintiff, in the supreme court of the United States, it was contended for the defendant--First, that a justice of the peace was not one of the officers exempted by statute; and, second, that the court-martial had exclusive authority to hear and determine his claim of exemption. The supreme court overruled both propositions; and as to the second, with which only I have to deal at present, said: ‘It follows from this opinion that a court-martial has no jurisdiction over a justice of the peace: he could never be legally enrolled. And it is a principle that a decision of such a tribunal, in a case clearly without its jurisdiction, cannot protect the officer who executes it. The court and the officer are all trespassers.’ Page 337.
To the same effect is the language of the supreme court in the Case of Watkins, 3 Pet. [28 U. S.] 208, 209. Court-martial may be restrained by writ of prohibition from the courts of common law,--’the general ground of prohibition being an access of jurisdiction,’ as Lord Loughborough termed it, ‘where they assume a power to act in matters not within their cognizance.’ Grant v. Gould, 2 H. Bl. 100.
But the most remarkable case is that which resulted in the conviction of Governor Wall for murder, at the Old Bailey sessions, in January, 1802. Before narrating it, in the language of Lord Campbell, I must observe that the court-martial had jurisdiction of the party accused, and of the offense with which he was charged; but, inasmuch as all such courts are of special and limited authority, a defect which would not impair the sentence of a court of general jurisdiction will suffice to annul their sentences, even upon collateral examination.
‘Joseph Wall, who had served, from early youth, as an officer in the army, and had always been distinguished for gallantry and good conduct, was, during the American war, appointed governor of Goree, on the coast of Africa. With a very insufficient garrison, and with very slender military supplies, he had to defend this island from the French, who planned expeditions against it from their neighboring settlement of Senegal.
Governor Wall performed his duty to his country, in the midst of formidable difficulties, with firmness and discretion; and the place intrusted to him was safely preserved from all perils till peace was re-established. He was then about to return home, in the expectation of thanks and promotion, but great discontents existed among the troops forming the garrison, by reason of their pay being in arrear. This grievance they imputed to the governor, and they resolved that he should not leave the island till they were righted.
Benjamin Armstrong, a sergeant, their ringleader, was brought by him, irregularly, before a regimental court-martial, and sentenced to receive eight hundred lashes. Although this whipping was administered with much severity, he, in all probability, would have recovered from it, if he had not immediately after drunk a large quantity of ardent spirits; but this intemperance, together with the wounds inflicted upon him by the flagellation, and an unhealthy climate, brought on inflammation and fever, of which he died.
Order was restored, and the governor returned to England. However, representations were made to the authorities at home, respecting irregularity and alleged cruelty, which had been practiced, and exaggerated accounts of the proceedings were published in the newspapers; stating, among other things, that the governor had murdered Armstrong and several other soldiers by firing them from the mouths of cannon.
A warrant was issued against him by the secretary of state; he was arrested by a king’s messenger, and he made his escape as they were conveying him from Bath in a chaise-and-four. He immediately went abroad, and *893 he continued to reside on the continent till the peace of Amiens; when, on the advice of counsel, he came to England, wrote a letter to the secretary of state, announcing his return, and surrendered himself to take his trial.’ Lives of the Chief Justices (volume 3, pp. 149, 150).
Twenty years had thus elapsed: nevertheless, Wall was put on trial before a special commission; and the jury, after deliberating half an hour, returned a verdict of guilty, and sentence of death was immediately pronounced. Execution was respited until Lord Eldon and others of the ministry could examine the case; but, finally, the governor was hanged on a gibbet, in front of the jail of Newgate, and, as Lord Campbell informs us, ‘amidst the shouts and execrations of the most numerous mob ever assembled in England to witness a public execution.’
I mention this painful and singular case, not that I approve Wall’s execution,--for, although he was rightfully convicted, I think he ought to have been pardoned,--but to show that the sentence of a military tribunal acting irregularly, and, a fortiori, acting upon persons beyond its jurisdiction, cannot avail as a defense to those who pronounce the sentence, or those who execute the sentence, when called to account, in due course of law, notwithstanding the lapse of many years.
And thus, if your honor please, it ought to be. Otherwise, military officers would not only, as now, become too powerful to be restrained by the civil magistrates, but would purchase to themselves an immunity for all transgressions. The rights of the people, as enumerated in the several clauses of the constitution which I have read, cannot be affected in any degree by the suspension of the privilege of the writ of habeas corpus.
Harsh as that suspension would be, and unnecessary (as I think) except in the states where insurrection and rebellion prevail, it would not authorize any arrest of a citizen by the military power while the ordinary course of justice remains unobstructed, nor even, without a warrant, except in the cases I have already specified, by a civil magistrate.
It would not dispense with the necessity of a trial by jury, and upon indictment: it would justify none of the acts of General Burnside in this particular case. De Lolme, in his celebrated essay on the Constitution of England (book 2, c. 17, pt. 2, note), says: ‘At the times of the invasions of the Pretender, assisted by the forces of hostile nations, the habeas corpus act was indeed suspended. * * * 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.
Notwithstanding the just fears of internal and hidden enemies, which the circumstances of the time might raise, the deviation from the former course of the law was carried no further than the single point we have mentioned. Persons detained by order of the government were to be dealt with in the same manner as those arrested at the suit of private individuals; the proceedings against them were to be carried on no otherwise than in a public place; they were to be tried by their peers, and have all the usual legal means of defense allowed to them,--such as calling of witnesses, peremptory challenge of juries,’ etc. And such Lord Eldon, while attorney general, and addressing the jury in Hardy’s Case, October 28, 1794 [1 East, P. C. 99], declared to be ‘the true constitutional meaning’ of the act of parliament, then in force, whereby the privilege of the writ of habeas corpus had been suspended. * * *