Page images
PDF
EPUB

has arisen. We have nothing to do with the validity of the the Judiciary Act; 1 Stat. at Large, 85: Cohen vs. Firginia, law as a defence to the action. It is sufficient for the State 6 Wheaton, 261; Miler is Nicholls 4 Wheaton, 311.) court that the defence involves the construction and etfect Cannot Congreg give the Circuit Court of the United of a law of Congress. The case has then arisen when the States original jurisdiction in any case to which this app courts of the United States may have jurisdiction, if Con- late jurisdiction extenda? gress so directs. If the law does not afford a constitutional In Osborn vs. United States Bank, 9 Wheaton, cited by or valid defence, it cannot now be doubted that the learned Judge Leonard, Chief Justice Marshall said he could perjustices of the United States Courts will so declareit, when ceive no ground for saying that Congress could not. the jurisdiction of such cases will remain in the State In that case one of ihe questions way whether Congress courts, as before the enactment of the law. It is not our could constitutionally conter un the Bank the right to suo duty to assert the independence of our State sovereignty and be sued in every Circuit Court of the United States." and jurisdiction; for the final construction and effects of all It was held that such a suit was a case arising under a acts of Congress may be brought before the United States law of the United States, consequently that it was within Courts by the express provision of the Constitution. the judicial power of the United States, and Congress could

The manner of taking the cause to those courts is of con- confer upon the Circuit Court jurisdiction over it. Bequence. The Supreme Court of the Union must be relied See, also, Curtiss's Com, on the Jurisdiction, &c., of the on to prevent its jurisdiction from being unlawfully ex- Courts of the United States, sections 12 and 13; the latter tended by Congress. I ain of the opinion, therefore, that section, containing a quotation from another portion (p. Akm) Congress has the power to direct the transfer of such cases. of the opinion of Chief Justice Marshall in Osborn 13. the

In my opinion this application was necessary in order to Bank of the United States, apparently quite pertinent to vest the U.S. Circuit Court with the possession of the ac- the question in this case. tion, but the discussion has not been lost, inasmuch as it I concur, then, in the conclusion of Judge Leonard, that will be now settled that this Court will not, in this judicial Congress had the power to direct the transfer to the Circuit district, take further cognizance of cases which have been Court of the United States. transferred under this act of Congress. It is very proper Probably an order of this Court directing such transfer is that an order beentered transferring the cause to the U.S. not absolutely necessary, but to make one would be in a Circuit, as it affords the evidence in the Court or the dispo- cordance with usage iu like cases; and besitles, such an sition made of it.

order would be the best evidence of the determination of In arriving at my conclusions I have consulted Story's this Court, that it no longer had jurisdiction of this action. Com.onthe Constitution, chap. 38,83903, 906, &c.; 1 Wheat., It appearing that the defendant has complied with the Martin is. Ilunter; 6 Wheat., Cohen vs. The State of Vir- requirements of the act for such transfer, the order ap ginia; 9 Wheat., Osborn rs. The Bank of United States. peuled from should be reversed, and an order made liy this

As a rule of practice I think the Court should not ap- Court for the removal of the action and all proceedings prove any sureties unless the amount of the bond is equal theruin tu the Circuit Court of the United States. to the sum in which the defendant in the action has been

Dissenting Opinion. held to bail, if bail hus been required in the State Court. This fact should be made to appear to the satisfaction of the CLERKE, J.-I see nothing whatever in the arguments of judge to whom the bond is presented for approval. my brethren, or in those of other judges on ths sune sul

The decision in this case will also embrace the case of ject, to induce me to recede from the position which I have Gudeman vs. Woul, arguou at the same general term as the attempted to maintain at Special Term. They have all present case.

alike, in my very humble judgment, unacconniably overThe order appealed from should be reversed, and the mo- looked the only point claiming consideration on this great tion below should be granted without costs.

constitutional subject. SUTHERLAND, J.-The question is not as to the constitu- According tu the doctrine upheld by my brethren, we tionality of the fourth section of the act declaring that the can scarcely conceive of any aci committed by any officer order or authority of the President, during the rebellion, of the General Government, under color of any authority shall be a defence in all Courts, to any order for any arrest, derived froin or uuder the President, which may not cunimprisonment, or act donc, or omitted to be done, under or stitute a genuine, veritable case arising under the Constiby color of the President's order, or of any law of Con- tution of the United States, and which, therefore, niay not gress; but the question is as to the constitutionality of the rightly come within the cognizance of their judicial power. fifth section of the act, authorizing the defendant in any such It is only necessary to claim that it was commited under action, to remove the same from the State Court to ilo Cir-color of that authority, aod was, therefore, justified by tbe cuit or the United States for the district where the suit is Constituzion, however moustrous and appalling the act brought for trial, on complying with certain requirements may be, to make it, according to this doctrine, a case arising specified in the section; that is, on entering his appearance, under that Constitution. For, of course, according to the filing his petitiou stating the facts, offering good and sutti- terms of that claim, the claimant appeals through this recient surety, &c.

mashable statute, to the Constitutio i for his justification, The question presented by this appeal is not as to the con- and, however palpably frivolous such a claim may be stitutional power of the Presideut to order the arrest, im- buswever palpably manifest may be the conviction that the prisonment, &c., or as to the constitutional power of Con- Constitution no more sanctions such an act that it sanctions gress to authorize the President to order tho arrest, impris- the burning of the Capitol, the dispersion of Couuress, an ! oument, &c.; but the question presented by the appeal is the shooting, imprisonment or exile of the mea of whon it as to the constitutional power of Congress to give ihe Cir. is composed, yet it is claimed to present a question, and, cuit Courts of the United States, primary or original, and therefore, a case arising under the Great Charter of Consti(as to the State Courts) exclusive jurisdiction, of the trial of sutional Liberty in America--the perpetrator of tbe outactions for such arrests, imprisonments, &c.

rage making that a question which is unquestionably no In determining the question as to the constitutionality of question; and the judicial power of the State is vusted of the sixth section of the act, we must assume, I think, that its legitimate jurisdiction. Thus, this extraordinary statute the trial of this action will involve the determination of the prescribes not only that the character, but tho mere asserquestion as the constitutionality of the fourth section; that tion of the wrong-doer shall determine jurisdiction, and Congress, in passing the act, considered tbat the trials of that the subject matter, which has been always held, exthe actions to be removed to the Circuit Courts of the Uni-cept in cases affecting Embassadors, other diplomatic ted States under it would involve the determination of the Ministers and Consuls, as alove the criterion of jurisdiction, question as to the coostitutionality of the fourth section, shall be excluded from consideration. Surely, if this can whether tried in the State yr United States Courts; and be done by Congress, the Government of the United States that Congress intended by the fifth section to take from the of America, is not as all men bare beretusore supposed, State Courts, and give it to the Circuit Courts of the United incontestably a Government of limited powers and duties, States, the right and power to determine that question. and is, if not one of unlimited powers and duties, neri'rthe

Had Congress the constitutional power to do this? That less, of very accommodating expansibility. This is a novel is the question.

and strange theory of development in America If Congress had the power, then the order appealed from But, it is asserted as the appellate power of rau Supreme deuying the defendant's motion to remove the action and Court of tbe United States extends in certaji enses to State all proceedings therein to the Circuit Court of the United tribunals, that this case would, after judgment, reach the States for the Southern District of New York should be re- Federal jurisdiction, and that, therefore, it may as well be versed, and I think an order made directing such removal. transferred to the United States Circuit Court before judg. If Congress had not the power, then the order appealed from ment. Even if the Supreme Court of the United States should be affirmed.

would entertain such a case on appeal this is no controllios If no steps had been taken for the removal of the action reason why it should, necessarily, be transfered to the from this Court, and the action should be tried in this Court, Vuited States Circuit for adjudication in the first instance. and the question as the constitutionality of the fourth section For, the only question to be determined by us on this of the act should be decided adversely to the defendant by motion, is whether Congress has the power to transfer the Court of Appeals of this State, the Supreme Court of the cases of this description to the Circuit Court of the United United States would have final and conclusive appellate States, pot whether, ultimately, it may reach the appeilate jurisdiction of the question. (Const. U. S. Art. 3; bec 25 of jurisdiction of the Unitud States Supreme Court.

The act of Congress, passed in 1789, “ to establish the ju- | same is hereby suspended; but such suspension shall apply dicial courts of the United States," no doubt provides that only to the cases of persons arrested or detainer! by order of a final judgment or decree in any suit in the highest court the President, Secretary of War, or the geueral oflicer comof law or equity of a Stato, where is drawn in question the manding the Trans-Mississippi Military Department, by the validity of a statute of the United States, and the decision authority and under the control of the President. It is is against its validity, may be re-examined and revised or hereby declared that the purpose of Congress in the passage affirmed in the Supreme Court of the United States. But, of this act is to provide inore effectually for the public safety if it is to clear for controversy that the statute is an out by suspending the writ of habeas corpus in the following rap on the Constitution, if it is palpably usurpation, if it cases, and no other: is plain to the most unlettered citizen, that the statute is 1. Or treason, or treasonable efforts or combinations, to an attempt to subvert all the securities which the founders subvert the Government of the Confederate States. of the Government have provided for the preservation of 2. Of conspiracies to overthrow the Government, or con. personal liberty, and to invest one man with unlimited dic- spiracies to resist the lawful authority of the Coufoderato tatorial power, and, therefore, that the appeal was palpably States. frivolous, I presume the court would hear no argument on

3. Of combining to assist the enemy, or of communi. such an appeal, and would, forthwith, affirm the judgment cating intelligence to the enemy, or giving liin aid and cr dismiss the writ.

comfort. Would they, for instance, hearken to an appeal involv- 4. Of conspiracies, preparations and attempts to incito ioz the validity of an act of Congress giving the President servile insurrection. or any other member of the Government pourer, by a coup

5. Of desertions or encouraging desertions, or harboring d'etat, to extinguish the legislative branch, as Cromwell dia deserters, and of attempts to avoid military service: Pro the Long Parliament, and substitute a Barebones Legisla- ritud, That in cases of palpable wrong and oppression by ture in its place? Surely not; if they, too, were not struck any subordinate officer, upon any party who does not le down, and were not (if said debasement can be imagined) gally owo military service, lis superior othcer shall grant by forta, by fear, or by corrupt appliances or selfish aspira- prompt relief to the oppressed party, and the subordinato tions, robbed of independeuce. So that the consideration shall be dismissed from office. . whether the act is not palpably void must present itself on

6. Of spies and other emissaries of the enemy. appeal as it now presents itself to us on this motion; and, 7. Of holding correspondence or intercourse with the if it is palpably void, I repeat it would not be treated on enemy, without necessity, and without the permission of appeal as worthy of being for a moment entertained. the Confederate States.

I still consider the defence in this case just as destitute 8. Of unlawful tracting with the enemy and other offences of color as the case which I have imagined. Whether, un- against the laws of the Confederate States, enacted to der the pretext of authority from the President of the United promote their success in the war. States, anyone citizen, at his mere will and pleasure, with- 9. Of conspiracies, or attempts to liberato prisoners of out any intervention of the judicial tribunals, can incer-war held by the Confederate States. cerate another citizen cot subject to military law in a loath- 10. Of conspiracies, or attempts or preparations to aid son dungeon, for many months, or for a day or an hour, the enemy. canot, under any circumstances in which the nation may 11. Of persons aidling or inciting others to abandon the be placed, be treated as a question constituting a case aris-Confederate cause, or to resist the Confederate States, or to in under the Constitution; and any statute which declares adhere to the enemy. the contrary is palpably void. The order at Spocial Term

12. Of unlawful burning, destroying or injuring, or at. shoald be affirmed with costs.

tempting to burn, destroy or injure any bridge or railroad,

or telegraph line of communication, or other property with MILITARY ARRESTS.

the intent of aiding the enemy. * The following order has been issued by Gen- of the Government by d stroying or attempting to destroy

13. Of treasonable designs to impair the military power eral Angar:

the vessels or arms, or munitions of war, or arsenals, fourHEADQUARTERS DEPARTMENT OF WASHINGTON, deries, workshops, or other property of the Confederato

220 ARMY Corps, June 20, 1864. States. GENERAL ORDER No. 51.-First: Hereafter no citizen, com- The remaining sections are unimportant. The act to usibed officer, or enlisted man, will be arrested on the continuo in force 90 days after meeting of next Congress. Tepist of a detective employed by any officer subject to the

EXTENT OF POWER CLAIMED BY THE GOVERNMENT. jurisdiction of this department, except in extreme cases where there is no doubt of guilt, and immediate action is

The instructions of the War Dapartment with respect to beded, until the report has first been forwarded for action proceedings under the law making it limited or quusi suisat these headquarters.

pension of the habeas corpus, remove many grouuds of Soal: All officers serving in this department employing clanor, and propose what may be considered as a very detintires will send with as little delay as possible a list of moderato execution of the law. Parties arresteil

, in the the employed to the headquarters, wj*vifying the author

cases specified in the law, will not be denied a trial, but ity by whenemployed; and they are notitied that they will

their cases will be investigated by commissioners, who will be hell responsible for improper action or abuse of authority on the part of their employees.

* Respecting this offence, this order was issued in 1861: By command of Major General C. C. AUGER:

WAR DEPARTMENT, J. H. TAYLOR,

RICHMOND, Nwember 25, 1861. Chief of Stall, A. A. G. SIR: Your report of the 20th instant is receiveli, and I .

now proceed to give you the desired instructions in relation "Confederate" Legislation.

to the prisoners taken by you among the traitors of East

Tennessee. (From the Richmond Sentinel, Feb. 17, 1864.]

First. All such as can be identified in having been en

gaged in bridge burning are to be tried summarily by drunSUSPENSION OF THE WRIT OF HABEAS CORPUS.

lead court-martial, bil, if found guilty, executed on the The following bill passed both Houses of spotly hanging. It would be well to leave their bodies

hanging in the vicinity of the burnt bridges.

Second. All such as have not been so engage are to bo A Bill to suspend the privilege of tho writ of habeas corpus treated as prisoners of war, and sent with an armcu guard in certain cases.

to Tuscaloosa, Alab.una, tire to be kept imprisoned at the Whereas, the Constitution of the Confederate States of deput selected by the Govrnment for prisoners of war. America provides, in article 1, section 9, paragraph 3, that Whenever you can discover that arms are concentrated ** iba prisilage of the writ of habeas corpus shall not be sus by these traitors, you will send on vietachm. nts, search for çanleid

, unless when, in cases of rebellion or invasion, the and seize the arms. In no case is one of the men known to piiblis safty may require it;” and whereas the power of have been up in arms against the Government to be 10$a-peddling the privilege of said writ, as recognizel in said leased on any pledge or oath of allegiance. The time for article 1, 14 Vested solely in the Congress, which is the ex. such measures is past. They are to be held a prisoners of clasive joigo of the necessity of such suspension; and war, and hell in jail till the end of the war. Such as como wberoan, in the opinion of the Congress, the public safety in voluntarily, tako the oath of alleziance, and surrender Tauires the suspension of said writ in the existing case of thcir arins, are alone to be treated with leniency. thi iarasion of these States by the armies of the United Your vigilant execution of these orders is earnestly urged Etats: and whereas, the President has asked for the sus by the Government. pension of the writ of habeas corpus, and informol Congress

Your obedient servant, of conditions of public danger which render the suspension

J. P. BENJAMIN, Secretary of War. of the writ a mcagure proper for the public defonce against Col. W. B. WOOD, Knorrille, Tenn. invasion and insurrection: Now, therefore,

P.S.- Julge Patterson, Col. Pickens, and other ring. I. That during the present invasion of the Confederate leaders of the same class, must be sent at once to 'Tuscalousa States, the privilege of the writ of habeus corpus be and the, to jail as prisoners of Wür.

Congress :

be appointed for these duties in the different military de- | offices for the West and South, including oror one thousand partments.

copies for louisville, and nearly five hundred copies for Information of all arrests under the law will be given by Baitimore, Washington, Alexandria, and Annapolis. The the department commander as soon as practicable after Ma shal aiso took possession of the office of the Christi a they are made, and the commissioner will proceed to inves- Observer in consequeuce of a late violent article on the “untigate the same. Il, upon examination, a reasonable and holy war." probable cause for detention does not appear, he will certify the fact to the general or other officer in command, who

Other newspapers were similarly excluded from will immediately discharge the prisoner from arrest. But the mails, and in due time, the subject engaged if a reusonalilo and probable canse does appear, the com- the attention of Congress; resolutions of iocopy of the evidence taken in the case, with his opiuion quiry having been offered in the Senate, January thereon, for instructions, and meanwhile the prisoner will 14, 1863, by Mr. Carlile, and in the House, remain in custody.

December 1, 1862, by Mr. VallanDIGHAM. In cases where persons pot belonging to the military service shall apply to any court or officer in the Confederate

1863, January 20—The Committee on judici. States for a writ of habeas corpus, it will be the duty of tho ary of the House of Representatives made a with to report tlo case, with all the relevant practsto the report, which embodied the following letter of War Department, for instructions as to the proper answer

the Postmaster General : to be made to such writ.

Post OFFICE DEPARTMENT, January 5, 1863. SIR: I have the honor to acknowledg the receipt of the

communication signed by you in behalf of tbe Judiciary Newspaper Exclusion and Suppres-Committee, embracing n copy of the resolution of the House sion.

of Representatives, in the following words:

Resolved, That the Committee on the Judiciary be inAugust 16 1861-In the United States Circuit structed to inquire and report to the House at au early day Court of New York the grand jury presented by what authority of Constitution and law, if any, the the Journal of Commerce, the Daily News, the Postmaster General undertakes to decide what newspapers

may and what shall not be transmitted through the mails Freeman's Journal, and the Brooklyn Eagle its of the United States." aiders and abettors of treason, in terms follow- On the first day of the last session of Congress, being the ing:

earliest opportunity after the action to which the resolution

relates, I submitted to Congress a statement of my action, To the Circuit Court of the United States

and of the general reasons and authority for the same, in for the Southern District of New York:

the following language: The Grand Inquest of the United States of America for * Various newspapers, having more or less influence the Southern District of New York beg leave to present the within the sphere of their circulation, were ripresented to following facts to the Court and ask its vrice tliereon: be, and were, in fact, devoting their columns to the further.

There are certain newspapers within this district which ance of the schemes of our national euemies. These efforts are in the frequent practice of encouraging the rebels now were persistently directed to the advancement of hostile in arms against the Federal Government liy expressing syin- interests, to thwart the efforts made to preserve the intes. pathy and agreement with them, the duty of acceding to rity of the Union, and to accomplish the results of open their demands, and dissatisfaction with tho employment of treason without incurring its judicial penalties. To await force to overcome them. These papers aro tho New York tho results of slow judicial prosecution was to allow crime daily and weekly Journal of Commerce, the daily and weekly to be consummated, with the expectation of subsequent News, the daily and weekly Day-Book, the Freeman's Jour- punishment, instead of preventing its accomplishment big nal, all published in the city of New York, and the daily and prompt and direct interference. weckly Eagle, published in the city of Brooklyn. The first “The freedom of the press is secured by a high constitunamed of these lias just published a list of newspapers in tional sanction. But it is freedom and not license that is the free States opposed to what it calls “the present unholy guaranteed. It is to be used only for lawsul purposes. It war”—a war in the defence of our country and its institu- cannot air blows at the existence of the Government, the tions, and our most sacred rights, and carried on solely for Constitution, and the Union, and at the same time claim its the restoration of the authority of the Guvernment.

protection. As well could the assassin striko his blow at The Grand Jury are aware that free Governments allow human life, at the same time claiming that his victim liberty of speech and of tho press to their utmost linit, l'ut should not commit a breach of the peace by a counter there is nevertheless a limit. If a person in a fortress or blow. While, therefore, this departinent neither enjoyed an army were to preach to the soldiers submission to the nor claimed the power to suppress such treasonable publienemy he would be treated as an offender. Would he le cations, but left them free to publish what they pleasuri, it moro culpable than the citizen who, in the midst of the could not be called upon to give then circulation. It could most formidable conspiracy and rebellion, tells the con- not and would not interfere with the freedom sucured by spirators and rebels that they are right, encourages them law, but it coukl and did obstruct the dissemination of that to persovero in resistance, and condemns the effort of loyal license which was without the pale of the Coustitution and citizens to overcome anıl punish them as an mholy war?" law. The mails established by the United States GovernIf the utterance of such language in the streets or through ment could not, upon any known principle of law or public the press is not a crime, then there is a great defect in our right, be used for its destruction. As well could the comlaws, or they were not made for such an emergency. mon carrier bo legally required to transport a machine

The conduct of these disloyal presses is of course con- designed for the destruction of tho vehicle conveying it, or demned and abhorred by all loyal men; but the Grand Jury an inukeeper be compelled to entertain a traveller whom will be glad to learn from the Court that it is also subject he knew to be intending to commit a robbery in his house. to indictment and condign punishment.

" I find these views supported by the high authority of All which is respectfully presented.

the late Justice Story, of the Supreme Court of the United CHIARLES GOULD, Foreman. States. He says, in commenting on that clause of the ConNEW YORK, August 16, 1861.

stitution securing the freedom of the press : (Signed by all the Grand Jurors.]

“That this amendment was intended to secure to every ORDER OF THE POSTMASTER GENERAL.

citizen an absolute right to speak, or write, or print what

soever he might please', withont any responsilility, publie Post OFFICE DEPARTMENT, August 22, 1861. or private, therefor, is a supposition too wild to be induigd Sir: The Postmaster General directs that from and after in by any rational man. This would be to allow to every your receipt of this letter nono of the newspapers pub-citizen the right to destroy at his pleasure the reputation, lished in New York city which were laly presented by the peace, the property, and even tho personal safety of cra the grand jury as dangerous, from their disloyalty, shall be ery other citizen. A man might, out of mere malicu or forwarded in the mails.

revenge, accuse another of tho most infamons crimes; I am, respectiully, your obedient servant,

might excite against him the indignation of all his fellowT. B. TROTT, Chief Clerk. citizens by the most atrocious calumuies; might disturli, To the POSTMASTER, New York City.

nay, overturn all his domestic peace and eml.itter his par

ental affections; miglit inílict the most distressins putnu SEIZURES OF NEWSPAPERS.

ment upon the weak, the timid, and the inuocent; might PAILADELPHIA, August 22-0, the arrival of the New prejudice all a man's civil and political and private rights; York train this morning Marshal Millward. and his officers, and might stir up sedition, rebellion, and treason, even examined all the bundles of papers and seized every copy against the Government itself, in the wantonness of his of the New York Daily Nws. The sale of this paper is passions, or the corruption of his beart. Civil society could totally suppresvel in this city. Marshal Millward also not go on under such circumstances. Yen would then buized all the bundles of the Daily News at the Express obliged to resort to privato vengeance to make up the des

[ocr errors]
[ocr errors]
[ocr errors]

*

ciency of the law; and assassinations and sarago cruelties | siderations there is reason to doubt whether the abolitionwould be perpetrated with all the frequency belonging to ists have a right to make use of the mails of the United barbarous and crucl communities. It is plain, then, that States to convey their publications into States where their the language of this amendment imports no more than that circulation is forbidden by law, and it is by no ireang every man has a right to speak, write, and print his opin- certain that mail-carriers and postmasters are secure from ions upon any subject whatever, without any prior re- the penalties of that law, if they knowingly carry, disstraint, so always that ho docs not injure any other person tribute, or hand them out.

As well may in his rights, person, property, or reputation; anul soulways the counterfeit-r and rubber demand the use of the mails Ant le dernt lureby disturb the public peace, or attempt to for consumnjating their cuines, and complaiu o. a violation brert the Gorernment.'

of their rights when it is denied. *Of the cases presented for my action, upon the princi- “Upon these grounds a postmaster may will hesitate to ples above named, I have by order excluded irom tho muls be the agent of the abolitionists in sending their incendiary isels of the treasonabló publications, of which several publications into States where their circulation is prohibihad been previously presented by the grand jury as incen- ted by law; and much moro may postinastirs residing in diary and hostile to constitutional authority.

those States refuse to distribute them.

I do I am not aware that at any time, nor from any quarter, not desire to be understood us ullirming that the suggesduring that lon session, any inquiry or complaint was made, tions here thrown out ought, without the action of higher or objection tak n touching that action, or the considera- authority, to be considered as tho settledconstruction of the tions then pres“nted in support of it. From this it was law, or regarded by postmasters as the rule of their futuro fairly iuferred that Congress then unanimously recognized action. It is only intended to say that in a sudden emerthe action as not only in harmony with, but in direct aid of, gency, involving principley so grivo and consequences so the Constitution of the United States, then shaken by the serious, the safest course for postmasters and the best for ssault of its avowed enemies.

the country is that which you have adopted. The imme liate occasion of the orders excluding certain You prevent your Government from being the unwilling Dewspapers from th muils was a communication to this de- agent and abottor of crimes against the States which strike parta-ut of the action of a grand jury of the United States at their very existence, and give time for the proper aucircuit court for the Southern District of New York. Their | thorities to discuss the principles involved an I digest a safe prentment was in the following words. (See ante for pre- rulo for the futuro guidance pf the dipartiment. kotment.

"Whilo persisting in a course which philanthropy reThis authoritatire exhibition of the character of these commends and patriotism approves, I doubt not that you papers, as disseminators of treason and instigators of tho and the other postmasters who have assumed the responsi. bigbest crimo known to our laws, could not be disregarded, bility of stopping theso inflammatory p.:pers in their pasberompanied, as it was, by representations of their danger- sago to the South will perceive the necessity of performing ou efect upon the military operations of the country. your duty in transmitting and delivering ordinary newsEntertainin' tho highest possible regard for the liberty of papers, magazines, and pamphlets, with perfect punctuality. the press, distingui-bed from its uncontrolled and criminal Occasion must not bo given to charge the postmasters with license, I would not, except in time of war, have adopted carrying their precautions beyond tho necessities of the the argument of my predecessors in office, in justification case, or capriciously applying them to other cases in which of the non-delivery of printed matter bent through tho there is no necessity; and it would bo tho duty, as well 28 fails. The question has been repeatedly presented to my the inclination, of the department to punish such assumppredecessors in timc of peace in relation to printed matter tion with unwonted severity. This suggestion I do not styled " incendiary,” or “abolition in its character," and make becauso I have any apprehension that it is neeled it report to the States now in insurrection. Whilo justily for your restraint, but becauio I wish this paper to bear ibg postarters in their refusal to receive or forward mail upon its face a complete explanation of the views which I matter described by the general terms of the postal laws as tako of my own duty in tho existing emergency.” Emulable matter," an eminent Postmaster General of the Tho question was afterwards repeatedly presented in this administration of General Jackson, under dato of August department. In February, 1557, it was brought biforo 2 18.). alirrseed a letter to the postmaster at New York Postmaster General Campbell, in connection with the ex. gring bis views upon the question under discussion. The clusion of the Cinrinnati Gazete fron postal privileges in kez York postmaster bad assuined to decide that certain Mississippi. A certain postmaster at Yazoo had denied it LapTB, placed in that post office for conveyance in tho the privilege of his post office. Mr. Campbell riferred tho mails

, were incendiary in their character, and calculated to question to the Attorney Gencral of Prosident Pierce's adproteste insurrection. To refused to forward them. Tho ministration. Under dato of March 2, 1557, the Attorney Puraster General, de lining himself to decido upon the General, as the law officer of the Government, replied character of the publications in question, and refusing to officially to the Postmaster General, justifying such action make the orders thereon, justified bis deputy postmaster in on the part of postmasters, and as ertins, among others, the decision made liy him, and supported him by the follow the following arguments and conclusions: ing arguments, extracted from his letter of that dite, to which

"ATTORNEY GENERAL'S OFFICE, the attention of Congress was subsequently called. That

** March 2, 1857. Congress, however, by its innction, seemed to concur in the right and the policy of excluding such alleged treasonable

“With those premises we have the main question and insurrectionary publications from the mails.

very much simplified. It is this: Ilas a citizen of one of

tho United States plenary indisputablo right to employ tho Post OFFICE DEPARTMENT, August 22, 1835.

functions and the oflicers of the Union as the means of en"Postmasters may lawfully know, in all cases, the con abling him to produce insurrection in another of the United tents of newspapers, becauso the law expressly provides States? Can the officers of the Union lawiully lend its functhat they shall to so put up that they may be realily ox: tions to the citizens of one of the States for the purpose of sided; and if they know those contents to be calculated promoting insurrection in another Stato? el designed to produce, and. if delivered, will certainly “Taking the last of these questions first, it is obvious to produce, the commission of the most aggravated crimes say that, inasmuch as it is tho constitutional obligation of ooo the property and persons of their fellow citizens, it the United States to protect cach of the States ngunstdocannot be doubted that it is their duty to detain them, mestic violence,' and to mako provision to suppress insurif not even to hand them over to the civil authorities. *rections,' it cannot be the right of the United States, or of

“ If it be justifiable to detain papers passing through any of its officers, and, of course, it cannot be their duty to the wall, for the purpose of preventing or punishing isolat. promote, or be the instrument of promoting, insurrection in ed erimes nainst individuals, how much more important any part of the United States. is it tbat this responsibility should be assumed to prevent “As to tho first question, likewise, it seems obvious to say, insurrections and saro communities? If, in time of war, a that, as insurrection in any one of the States is violation of retmaster shoull detect a letter of an enemy or spy pags- law, not only so far as regards that State itself, but also as fog through the mail, which, if it reached its destination, regards the United States, therefore no citizen of the Union would expose his country to invasion and her armies to can lawfully incito insurrection in any one of the States. estruction, ought he not to arrest it? Yet, where is the

It would be preposterous to suppose that any legal power to do so ?

citizen of the United States has lawsul riglt to do that - As a measure of great public necessity, therefore, you and which he is bound by law to prevent when attempted by be ther postmasters who have assumed the responsibility of any and all others; and monstrous to pretend that n citizen etapping these inflammatory papers will, I hare no doubt, stand of one of the States has a moral right to promote or commit pated in that strp before your country and all mankind. insurrection or domestic violence, that is, robbery, burglary,

Are the officers of the United Stateg com- arson, rape, and murder, by wholesale, in another of the pelled by the Constitution and laws to become the instru. States. Dienta and a complices of those who design to bafllo and “These considerations, it seems to me, are decisive of the make buzatory the constitutional laws of ihe States; to fill question of the true construction of the act of Congress. them with scdition and murder and insurrection; to over- Of that it is impossible for me to doubt. Ita enactment is, throw those institutions which are recognized and guaran. that if any postmaster shall unlawfully detain,' he shall tied by the Constitution itself?

In these con- be subject to fine, imprisonment, and disqualification.

$

[ocr errors]
[ocr errors]

Then, if the thing be of lawful delivery, it cannot be law- and disqualification? Is the inconvenience wbich the for. fully detained; while, on the other hand, it cannot be un- ein Government or its emissary may suffer, ir, not bring lawful to detain that which it is unlawful to deliver. Such able to effect the free circulation of such treasonable inaitir is the plain language and the manifest import of tho act of-or the inconvenience which the disaffected person to w Congress.

it was addressed suffers, in his not being able to receive and "I do not mean to be understood that the word 'unlaw- to circulate further such treasonablo inatter-are these infully' of the act determines the case: on the contrary, my conveniences to outweigh the inconvenience to the whole conclusion would be the same, though that word had not country, as well as to individuals, of insurrection, and of been hero inserted. By employing it, indeed, the act ex. civil or servile war? Is that the true construction of the pressly admits that there may be lawful cause of detention. act of Congress? I think no legal expositor could hesitate But such lawful cause would not the less exist, although to say, no. its existence were not thus expressly recognized. And, of

“ Now in what does the general case supposed, with its all conceivable causes of detention, there can be none more all but self-evident conclusions, differ from the specific caso operative than treasonableness of character, for in every under consideration? Simply, that any European Governsociety the public safety is the supremest of laws.

ment possesses the sovereign right, as an act of war, to Nay, if, instead of expressly admitting lawful causes of attack us with attempts to excite insurrection as well as detention, tho act hal undert:ken to excludlo them-if, for with cannon—sulject to be repelled by the sorerigo booster instance, it had in terms required the postmasters to circu- of the Union-but no citizen of the United States possesses late papers, which, in tendency and purpose, are of character legal right to promoto rebellious acts in any part of th. to incite insurrection in any of the Statestill my conclu- country, whether as against the authority of the United bion would be the same. I should say of such a provision States or of the particular State in which he is, or of any of law it is a nullity, it is unconstitutional; not so by other of the States. reason of conflict with any State law, but becauso incon

" In tine, the proposition may be made universal sistent with the Constitution of the United States.

to the effect that no person in the United States, whether he “The Constitution forbids insurrection; it imposes on be citizen, subject, or alien, has the legal right to promote reCongress and the President the duty of suppressing insur- bellion.

In the foregoing series of suprosí. rection; this obligation descends through Congress and tho tions we have reasoned out a conclusion from the premises President to all tho subor linate functionaries of tho Union, of the attempt of a foreign Government, by the use of our civil and military; and any provision of an act of Congress mails and post offices, to promote insurrection in the United requiring a Federal functionary to be the agent or minister States.

And shall not the citizens of one of of insurrection in either of the States would violate palpably the States of the Union be held ontitled to the same socurity the positivo letter, and defeat one of the primary objects, of from attempts to promote insurrection among them, on the the Constitution.

part of their fellow-citizens of other Stats? “ These, niy conclusions, apply only to newspapers, pamph-On the whole, then, it seems clear to mo that a deputy lets, or other printed matter, the character of which is of postmaster, or other officer of the United States, is noi re public notoriety, or is necessarily brought to the knowledge quired by law to become knowingly the enforced agent or of the postmaster by publicity of transinission through the instrument of enemies of the public peace, to disseminate, mails unsealed, and as to the naturo of which he cannot in their behalf, within the limits of any one of the States plead ignorance.

of the Union printed matter, the design and tendency of “ It is intimated in one of the documents before which are to promote insurrection in such State."* me that to permit a deputy postmaster to detain a news- Again, in 1859, Mr. Holt, then at the head of this departpaper because of its imputed unlawfulness would he to erect ment, in a letter dated the 5th of December of that year, him into a censor of tho press. These are but words of rhe- addressed to a postmaster in Virginia, adhered to the prece torical exaggeration. Public journals are a necessary part dents, and said: of our social life, just as much as the steamboat, the rail- “One of the most solemn constitutional obligations imway train, or the telegraph. There is not the least reason posed on the Federal Government is that of protecting the to apprehend that we shall suffer ourselves to be deprived States against 'insurrection' and 'domestic violence;' of of them by the interposition of unlawful impediments to course none of its instrumentalities can be lawiully emtheir circulation.

ployed in inciting, even in the remotest degree, to tho very “ Wo sball appreciate the true legal relation of the crime which involves in its train all others, and with the whole question if we consider a supposition which has more suppression of which it is especially charged.". than once heretofore been actual fact, and may be such These citations show that a course of precedents has fiagain. Suppose that some European Government-whether isted in this department for twenty-five years-known to in the prosecution of war,or induced by hostility of purpose Congress, not annulled or restrained by act of Congrs-in not yet become war, buttending towards it, or in the spirit of accordance with which newspapers and other printed mat. misdirected propagandism of its own particular social orter, decided by postal officers to be insurrectionary, or trego political opinions--should undertake to produce revolution sonable, or in any degree inciting to treason or insurrection, or insurrection in the United States. Would it, in that have been excluded from the mails and post office of the case, be the duty, would it be the right, of the Government United States solely by authority of the executive adminisor ollicers of the Union to aid tho foreign Government in its tration. This, under the rules settled by the Supreme Court inimical machinations ? To this general inquiry, of course, of the United States, as applicable to executive construction there can be but ono possible answer. It would be the mani- of laws with whose execution the departments are specially fest duty of every officer of the United States-pay, of every officer of each State-nay, of every citizen of tlie United * JEFFERSON DAVIS thus expressed himself on this opinion States, to resist, and to do everything in his power to de: of Attorney General Cushing a few months after its publifeat all such machinations; for every citizen of the United cation: States is under engagement, express or implied, to uphold

WASHINGTON, January 4, 1858. and maintain the Constitution.

GENTLEMEN: When I last addressed you in answer to your "In the general contingency supposed it is quite imma- letter cominunicating the views and feelings of the citizens terial whether foreign attempts to produce revolution con- of Yazoo City, in relation to the circulation of incendiary sist of exhortations to insurrection by word of mouth--that matter through the mails of the United States, I promis is, the introduction of emissaries of sedition into the coun- that you should hear from me further, and gave you a-surtry-or of exhortations to insurrection in the form of handance of such action by the last Administration as wonld be bills, newspapers, or pamphlets. In whatever manner at. satisfactory to you. tempted, the thing itself would be an act of wrongful or I have thus long delayed the promised communication in hostile attack on our sovereignty and on our national and expectation of receiving the opinion of the Attorney Gene private pence; defensible as an act of war on the part of an eral upon the legiul merits of the case, the question having enemy Government, but otherwise against natural law, been referred to him by the Postinaster General, the lion. against public law, against municipal law; and therefore, James Campbell. on all these accounts, requiring to be manfully withstood The Attorney General, in the opinion enclosed, sustains and counteracted by every sound-hearted and true-minded the conclusion of the President and the Postmaster Gencitizen of the United States, and more especially by all otheral, and so satisfactorily disposes of the question at issue cere, civil and military, of the Federal Government, from that I hope that we shall be saved from any further agiiathe President down to the humblest village postmaster in tion of it. the land.

Concurring fully with you in your opinion of the powers " The general supposition includes printed, equally with of a State, the duty of its citizens, and the obligation of our oral, exhortations to insurrection. Take now, by itself, the community in such contingency is that presented by the case of printed matter of that description. Is it the legal caso reported in your letter, I trust we shall also agtie that duty of the Post Office Department knowingly to circulato the matter has been concluded in a manner worthy of the such matter? Is it the legal duty of deputy postmasters? State-Rights Administration under which it arose. Or reducing the general supposition down to its narrowest With great regard, I am your friend and fellow citizen, expression in the limited exigencies of the present case, is a

JEFFERSON DAVIS. diputy postmaster required knowingly to circulato such To Messrs. Robert Bowman, George B. Wilkinson, and A matter under penalty of indictinent, removal from office, M. Harlow, committee, Yazoo City.

« PreviousContinue »