« PreviousContinue »
has arisen. We have nothing to do with the validity of the the Judiciary Act; 1 Stat. at Large, 65: Cohen vs. Virginis, law as a defence to the action. It is sufficient for the State 6 Wheaton, 261; Miler rs Wirbelk 4 Wheaton, 311.) court that the defence involves the construction and effect Cannot Congre og 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 lo courts of the United States may have jurisdiction, if Con- late jurisdiction exteuda? gress so directe. If the law docs not afford a constitutional In Osborn 1's. 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 declare it, 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 the questions was whether Congress courts, as before the enactment of the law. It is not our could constitutionally conter on the Bank the right to sus duty to assert the independence of our State sovereiguty 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 provisiou 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 am of the opinion, therefore, that suction, containing a quotation from another portion (p.su) 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 be entered transferring the cause to the U. s. not absolutely necessary, but to make one would be is w Circuit, is it affords thu evidence in the Court of the dispo- cordauce with usage ju like cases; an besiiles, 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.on the Constitution, chap.38, 23903, 900, &c.; 1 Wheat., It appearing that the defendant has complied with the Martin vs. Ilunter; 6 Wheat., Cohen vs. The State of Vir- requirements of the act for such transfer, the order apginia; 9 Wheat., Osborn rs. The Bank of United States. pealed from should be reversed, and an order made Ly this
As a rulo of practice I think tlie Court should not ap- Court for the reinoval of the action and all proceedings prove any sureties unless the amount of the bond is equal thervin tu the Circuit Court of the United States. to the sum in which the defendant in the action has been held to bail, if bail lus been required in the Statu Court.
Dissenting Opinion. 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 saine subThe decision in this case will also embrace the caso of ject, to induce me to recedo from the position which I bure Gudeman vs. Woul, argued at the same general term as the attempted to maintain at Special Term. They have all present case.
alike, in my very humble judgment, unaccouniably overThe order appealed from should be reversed, and the mo- looked the only point claiming consideration on this great tiou beluw 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 act committed by any officer order or authority of the President, during the rebelliou, 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 under the President, which may not cone imprisonment, or act donc, or omitted to be done, under or stitute a genuine, veritable casu 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 Act gress; but the question is its to the constitutionality of the rightly come wiihin the cognizance of their judicial power. fifth section of the act, anthorizing the defendantin any such It is only necessary to claim that it was committed under action, to remove the saine from the State Court tv iho Circolor of that authority, and was, therefore, justified by the cuit of the United States for the district where the suit is Constitution, however mvustrous and appalling the act brought for trial, on complying with certain requirements may be, to niekoit, according to this doctrine, a case arising fpecified in the section; that is, ou entering his appearance, under that Constitution. For, of course, according to the tiling his petition stating the facts, offering good and sutti- terms of that claim, the claimant appeals through this recient surety, &c.
marhable statute, to the Constitution 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 President to order the arrest, im- however pulpably manifest may be the conviction that the prisonment, &c, or as to the constitutional power of Con-Constitution uo more sanctions such an act than it sanctions gress to authorize the President to order the arrest, impris- the burning of the Capitol, tbe dispersion of Cougress, an! ouvent, &c.; but the question presented by thu appeal is the shooting, imprisonment or exile of the mea of whon it as to the constitutional power of Congress to give the Cir: is composed, yet it is claimed to present a question, and, cuit Courts of the United States, primary or original, and therefore, il 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 the 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 the mere asser. question 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, es the 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, questiou as to the coostitutionality of the fuurth 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 have beretofore supposed, State Courts, and give it to the Circuit Courts of the United incontestably a Government of limited powers and unties, States, the right and power to determine that question. and is, if not one of unlimited powers and dutis, neri'rthe.
Ilad 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 certaiii cases to Stato 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 judge If Congress had not the power, then the order appealed from
Even if the Supreme Court of the United States should be affirmed.
would entertain such a case on appeal this is no controllius If no steps had beon 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, United 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, not whether, ultimately, it inay reach the appeilate jurisdiction of the question. (Const. U. S. Art. 3; bec 25 of jurisdiction of the United 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 detained by order of a final judgment or decree in any suit in the highest court the President, Secretary of War, or the geueral officer comof law or equity of a Stato, where is drawn in question the manding the Trans-Vississippi 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 passico afirmed in the Supreme Court of the United States. But, of this act is to provide more 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 race 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 subyert 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 10 overthrow the Government, or conpersonal liberty, and to invest ono man with unlimited dic-spiracies to resist the lawful authority of the Confederate tutorial 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 him aid and Er dismiss the writ.
comfort. Vould they, for instance, hearken to an appeal involv. 4. Of conspiracies, preparations and attempts to incite inz the validity of an act of Congress giving the President servile insurrection. or any other member of the Government power, by a coup 5. Of desertions or encouraging desertions, or harboring detar, to extinguish the legislative branchi, as Cromwell diul desertors, and of attempts to avoidl military service: Pro the Long Parliament, and substitute a Barebones Legisla- rided, 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, an-1 were not (if said debasement can be imagined) gally owo military service, lis superior officer shall grant by force, by fear, or by corrupt appliances or selfish aspira- prompt relief to the oppressekl party, and the subordinate
tionis robbed of independence. 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 perinission of appeal as Forthy of being for a moment entertained.
the Confederate States. I still consider the defence in this case just as destitute 8. Or unlawful tra iing 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 prétextof 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 incar
war held by the Confederate States. Orite another citizen Cot subject to military lawin a loath- 10. Of conspiracies, or attempts or preparations to aid son dungon, for many months, or for a day or an hour, the enemy. cangot, under any circumstances in which the nation may 11. Of persons ailing 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 inx under the Constitution; and any statute which declares adhere to the enemy. the contrary is palpably void. The order at Special Term
12. Of uulawful burning, destroying or injuring, or atsboald be affirmed with costs.
tempting to buru, destroy or injure any bridge or railroad,
or telegraph line of coumunication, or other property with MILITARY ARRESTS.
the intent of aiding the enemy.* The following order has been issued by Gen- or the Government by distroying or attempting to destroy
13. Of treasonable designs to impair the military power eral Augur :
the vessels or arms, or munitions of war, or arsenals, founHEADQUARTERS DEPARTMENT OF WASHINGTON, deries, workshops, or other property of the Confederato
220 ARMY CORPS, June 20, 1861. States. GENERAL ORDER No. 51.–First: Hereafter no citizen, com- The remaining sections are unimportant. The act to Disiede officer, or enlisted man, will be arrested on the continue in force 90 days after meeting of next Congress. Iepurt 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 Department with respect to Derded, 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 grouus of Soml: All officers serving in this department employing clanor, and propose what may be considered as a very detectires will send with as little delay as possible a list of moderato execution of the law. Partica arresteil, in the those employed to these headquarters, 1 viiving the author
cases specified in the law, will not be denied a trial, but ity by xhenemployed; and they are notitieid 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. AUGUR:
WAR DEPARTMENT. J. H. TAYLOR,
RICHMOND, Norember 25, 1861. Chief of Stall, A. A. G. Sir: Yonr report of the 21th instant is received, and I
now proceed to give you the desired instructions in relation "Confederate" Legislation,
to the prisoners taken by you aniong 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 drum. SUSPENSION OF THE WRIT OF HABEAS CORPUS.
head court-martial, and, if found guilty, executed on the The following bill passed both Houses of spot by hanging. It would be well to leave their bodies Congress :
hanging in the vicinity of the burnt bridges.
Second. All such as have not been so engagel are to bo A Bill to suspend the privilege of the writ of habeas corpus treated as prisoners of war, and sunt with an armed guari in certain cases.
to Tuscaloosa, Alabuma, tbere to be kept imprisoned at the Whereas, the Constitution of the Confederate States of depot selected by the Government for prisoners of war. Adesica provides, in article 1, section 9, paragraph 3, that Whenever you can discover that arms are concentrated hibe privilege of the writ of habeas corpus shall not be sus- by these traitors, you will send or (letachments, search for Dancil, unless when, in cases of rebellion or invasion, the and seize the arms. In no caise is one of the men known to pablis surty may require it;" and whereas the power of have been up in arms against the Government to be resostending the privilege of said writ, as recognized in said leased on any pledge or oath of allegiance. The time for ariele 1, in vested solely in the Congress, which is the ex- such measures is past. They are to be held aš prisoners of clasive juice of the necessity of such suspansion; and war, and held in jail till the end of the war. Such as come wberean, in the opinion of the Congress, the public safety in voluntarily, tako the oath of alleziance, and surrencier Dars the suspension of said writ in the existing case of their arms, are alone to be treated with leniency. the iaraskin of these States by the armies of the United Your vigilant execution of these orders is earuestly urged Stairs, and whereas, the President has asked for the sus- , by the Government. posion of the writ of habeas corpus, and informel Congress
Your obedient servant, ci con-litions of public danger which render the suspension
J. P. BENJAMIN, Secretary of War. of the writ a measure proper for the public defonce against Col. W. B. Wood, Knoxville, Tenn. invasiva and insurrection: Now, therefore,
P. S.--Judge Patterson, Col. Pickens, and other ring. I That during the present invasion of the Confederate leaders of the same must be sent at once to Tuscaloosa States, the privilege of the writ of habeas corpus bu and the, to jail as prisoners of war.
be appointed for these duties in the different military de- ofices for the West and Snuth, including cror one thousand partments.
copies for Louisville, and nearly five hundred copies for Information of all arrests under the law will be given by Baltimore, Washington, Alexandria, and Annapolis. The the departnient commander as soon as practicable after Marshal also took possession of the office of the Christi a they are mode, and the commissioner will proceed to inves. Observer in consequeuce of a late violent article on the “oa. tigate the same. If, upon examination, a reasonable and holy war." probable cause for detention does not appear, lie will certify the fact to the general or other officer in cornmand, who the mails, and in due time, the subject engaged
Other newspapers were similarly excluded fron will immediately discharge the prisoner from arrest. But if a reasonable and probable cause does appear, the com- the attention of Congress; resolutions of inmissioner will forth with transmit to the War Department a quiry having been offered in the Senate, January copy of the evidence taken in the case, with his opinion thereon, for in-tructions, 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 not belonging to the military service shall apply to any court or oflicer in the Confederato
1863, January 20—The Committee on Judici. States for a writ of hebeas corpus, it will be the duty of the ary of the House of Representatives made a officer having the conımand or custody of such person forthwith to report thio case, with all the relevant facts, to 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 Newspaper Exclusion and Suppres-Committee, embracing a copy of the resolution of the House
communication signed by you in bebalf of the Judiciary 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 an 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 Freeman's Journal, and the Brooklyn Eagle is
may and what shall not be transmitted through the mails
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 resolutina
relater, I submitted to Congress a statement of my action, To the Circuit Court of the Uniled 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 newsppers, having more or less influence the Sonthern 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 itsalvice thereon: 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 enemies. These efforts are in the frequent practice of encouraging the rebels now were persistently directed to the advancement of hostile in armis against the Federal Government by expressing syin-interests, to thwart the efforts made to preserve the integpathy and agreement with them, the duty of acceding to rity of the Union, and to accomplish the results of opea their demands, and dissatisfaction with the employment of treason without incurring its judicial penalties. To avut force to overcomo them. These papers are the New York the results of slow judicial prosecution was to allow crime daily and weckly Journal of Commerce, the daily and weekly to la consummated, with the expectation of subsequent News, the daily and weekly Day-Book, tho Freemun's Jour- punishment, instead of preventing its accomplishmeat loy nal, all published in the city of New York, and the daily and prompt and direct interference. weekly Eagle, published in the city of Brooklyn. The first "The freedom of the press is secured by a high constitunanied of these las just published a list of newspapers in tional sanction. But it is freedom and no: license that is the free States opposed to what it calls “ the present unholy guaranteed. It is to be used only for lawful purposes. It war"-a war in the defence of our country and its institu- cannot aim blows at the existence of the Governinent, 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 Government. protection. As well could tho assassin strike his blow it
The Granıl Jury aro aware that frea Governments allow human life, at the same timo claiming that his victim liberty of speech and of the press to their utmost linit, L:ut should not commit a breach of the price by a counter there is nevertheless a limit. If a person in a fortress or Wow. While, therefore, this department neither enjoyed an army were to preach to the soldiers submission to the nor claimed the power to suppress such treasonable publienony he would be treated as an offender. Would he be cations, but left them free to publish what they pleased it more culpablo than the citizen who, in the midst of the could not be called upon to give them circulation. It could most formidable conspiracy and rebellion, tells the con. not and would not interfero with the freedom secured by spirators and rebels that they are right, encourages them law, but it could and did obstruct the dissemination of that to persevere in resistance, and condemns the effort of loyal license which was without the pule of the Constitution and citizens to overcome anıl punish them as an "unholy war?" | law. The mails established by the United States Governli thu utterance of such language in the streets or through ment could not, upon any known principle of law or public tho press is not a crime, then there is a great defect in our right, be used for its destruction. As well could the cornlaws, or they were not made for such an emergency. mon carrier be legally required to transport a machine
The conduct of these disloyal presses is of course con- designed for the destruction of the vehicle coureying it, or demned and abhorred by all loyal men; but the Grand Jury an inukeeper be compelled to entertain a traveller whim will be glad to learn from the Court that it is also subject he knew to be intending to commit a robbery in his hout to indictment and comign 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 CHARLES 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 tho Grand Jurors.)
*** That this amendment was intended to secure to every
citizen an absoluto right to speak, or write, print when ORDER OF THE POSTMASTER GENERAL.
soever he might please, without any responsibility, public Post OFFICE DEPARTMENT, August 22, 1861. or private, therefor, is it supposition too wild to be induly Sir: Tho Postmaster General directs that from and after in by any rational man. T'l.is would be to allow to every your receipt of this letter none of the newspapers pub- citizen the right to destroy at his pleasure the reputatiun, lished in New York city which were ladrly presented by the peace, the property, and even tho personal sulety of esa the grand jory as dangerous, from their disloyalty, shall be ery other citizen. A man might, out of mere malicu ar forwarded in the maily.
revenge, accuse another of the most infamous crimes; I ani, respectiully, your obedient servant,
might excito against him the indignation of all his fellow T. B. TROTT, Chief Clerk, citizens by the most atrocious calumvies; might distard, To the PostMASTER, New York City.
nay, overturu all his comestic pence and embitter his petr
ental affections; might inílict the most distressing punity SEIZURES OF NEWSPAPERS.
ment upon the weak, the timid, and the innocent: muht PHILADELPHIA, August 22-0, the arrival of the New prejudice all a man's civil and political and private ripiis; York train this morning Marshal Millward. and his officers, and might stir up sedition, rebelliou, and treason, evin examined all the bundles of papers and seized every copy against the Government itsell, in the wantonness of his of the New York Daily Niw. The sale of this paper is passions, or the corruption of his heart. Civil society could totally suppressed in this city. Marshal Millward also not go on under such circumstances. Men would then seized all the bundles of the Daily News at the Express | obliged to resort to privato vengeance to make up the deci
ciency of the law; and assassinations and sarage cruelties siderations there is reason to doubt whether the abolitionwould be perpetrated with all the frequency belonging to ists have a right to mako vso of the mails of the United barbarous and cruel communities. It is plain, thon, that States to convey their publications into States were 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 posimasters 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 he does 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 that he does nn tiureby disturb the public peace, or attempt to for consumniating their crimes, and complain oi a violation brert the GO rnment.'"
of their rights when it is de jeu. ** 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 from tho muils be the agent of the abolitionists in nonding their incendiary 161** of these treasonable 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 postinastors residing in diary and hostile to constitutional authority.”
those States refuse to distributo them.
I do I am not aware that at any time, nor from any quarter, not desire to be understood as allirming that the suggesduring that lon session, any inquiry or complaint was mado, tions hero thrown out ought, without the action of hi-her or obition tak o touching that action, or the considerio authority, to be considered as the settledconstruction of tho tina then presinted in support of it. From this it was law, or regarded by postmasters as the rule of their futuro fairly inferred that Congress then unanimously recognized action. It is only intended to say that in a sudden emerth-action as not only in harmony with, but in direct aid of, gency, involving principles so gravo and consequences 60 the Constitution of the United States, then shaken by the serious, the safest courso for postinasters and the best for Assaults of its avowed enemies.
the country is that which you have adopted. The imme iiate occasion of the orders excluding certain You prevent your Government from being the unwilling newspapers from the mails was a communication to this de- agent and abettor of crinies against the States which striko partarat of the action of a grand jury of the United States at their very existence, and give timo for the proper aucircuit court for the Southern District of New York. Their thorities to discuss the principles involved an:I digest a safo prezentruent was in the following words. (See ante for pro- rulu for the future guidance pt the di partenent. entment.)
“Whilo persisting in a courso which pilinthropy roThis authoritative exhibition of the character of these commends and patriotism approves, I doubt not that you papers, as disseminators of treason and instigators of the and the other postmasters who have assumed tho re ponsi. bigbest crimo known to our laws, could not be disregarded, bility of stopping these inflammatory ppers in their pasBe om pranit d, as it was, by representations of their danger- sago to the South will perceive the necessity of performing ous effect upon the military operations of the country. your duty in transmitting and delivering ordinary newsEntertaining the highest possible regard for the liberty of papers, magazines, and pamphlets, with perfect punctuality. the press, distinguished from its uncontrolled and criminal Occasion must not bo given to charge the postmasters with license, I wonld not, except in time of war, havo adopted carrying their precautions beyond the necessities of the the arguments of my predicessors in office, in justification case, or capriciou-ly applying them to other cases in which of the pop-delivery of printed matter sent through the there is no necessity; and it would bo tho duty, as well 18 tuzils. The question has been repeatedly presented to my tho inclination, of the department to punish such assumppredecessors in time 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 in respect to the states now in insurrection. While justily- for your restraint, but because I wi-b this paper to bear ing poetmasters in their refusal to receive or forwarılmail upon its face a complete explanation of the views which I nattes described by the general terms of the postal laws as tako of my own duty in the existing emergency."
muilable matter, an eminent Postinnster General of tho Tho question was afterwards repeateuly presented in this administration of General Jackson, under dato of August department. In February, 1857, it wils brought boforo 2. 1933. lirrssed a letter to the postmaster at New York Postmaster General Campbell, in connection with the exe giving bis views upon the question under discussion. The clusion of the Cincinnati Guzete from postal privileges in Sex York postmaster had assumed to decide that certain Mississippi. A certain postmaster at Yazoo had denied it Darz, placeilin that post office for conveyance in tho the privilege of his post office. Mr. Campbell ruferred tho Tajls, were incendiary in their character, and calculated to question to the Attorney General of Prusident Pierce's adprugte insurrection. lo refused to forward them. Tho ministration. Under dato of March 2, 15:57, the Attorney Pisttester General, declining himself to decide upon the General, as the law oslicer of the Government, replied character of the publications in question, and refusing to officially to the Postmaster General, justifying such action take ibe or less thereon, justified his deputy postmaster in on the part of postmasters, and assertins, 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, be attention of Congress was subsequently called. That
March 2, 1857. Congress, however, by its inaction, see to concur in the right and the policy of excluding such alleged treasonablo
* “With these premises we have tlie mrin question and insurrectionary publications from the mails.
very much simplified. It is this: Iling a citizen of one of
tho United States plenary indisputablo riglt to employ the Post Office DEPARTMENT, August 22, 1835. functions and the officers of the Union a; the means of en. "Postmasters may lawfully know, in all cases, the con abling him to produce insurrection in another of the United tepts of newspapers, becauso the law expressly provides States? Can the officers of the Union lawfully lend its functhat they shall be so put up that they may be realily ox. tions to the citizens of one of the States for the purpose of amined, and if they know those contents to be calculated promoting insurrection in another State? Add 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 the coustitutional obligation of upon the property and persons of their fellow citizens, it the United States to protect each of the States against domaapot 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 Stitez, 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 mail. for the purpose of preventing or purishing isolat. promote, or be the instrument of promoting, insurrection in ed erimes against individoals, how much more important any part of the United States. is it tbat this responsibility should be assumed to prevent "As to the 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 postmaster shoull detect a letter of an enemy or spy pass-law, not only so far as regards that State itself, but also as jog throuzh 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 incite insurrection in any one of the States. d struction, ought ho not to arrest it? Yet, whero is the
It would be preposteroux to suppose that any kegul power to do 90?
citizen of the United States has lawful right to do that “As a measure of great public necessity, therefore, you and which he is bound by law to prevent when attempted by the other postmasters who have assumed the responsibility of any and all others; and monstrous to pretend that a citizen stopping there inflammatory papers will, I hare no doubt, stand of one of tho States has a moral right to promote or commit pastizal in that step before your country and all mankind. | insurrection or domestic violence, that is, robbery, burglary,
Are the officers of the United States com- arson, rape, and murder, by wholesale, in another of the pelled by the Constitution and laws to become tho instru- States. menta and sucomplices of those who design to baffle and “These considerations, it seems to me, are docisive of the make puzztory the constitutional laws of the States; to fill question of the true construction of the act of Congress. them with sedition and murder and insurrection; to over. Of that it is impossible for me to doubt. Its 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.
Then, if the thing be of lawful delivery, it cannot be law- and disqualification? Is the inconvenience which the for fully detained; while, on the other hand, it cannot be un- ein Government or its emissary may sufler, ir, not bring lawful to detain that which it is unlawful to deliver. Such able to effect the free circulation of such treasonable inntir is the plain language and the manifest import of the act of -or the inconvenience which the disaffected person to work Congress.
it was addressed suffers, in his not being able to receire 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 here inserted. By employing it, indeed, tho act ex- civil or servilo war? Is that the true construction of the pressly admits that there may be lawful cause of detention. act of Congress ? think no legal expositor could hesitate But such lawful cause would not the less exist, although to say, no. its existence wero 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 1989 operative than treasonableness of character, for in every under consideration? Simply, that any European Governsociety tho 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, the act hål undertaken to exclude them-is, for with cannon-subject to be repelled by the sover igu power 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 Statesstill 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 because 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 supposirection; this obligation descends through Congress and tho tions we have reasoned out a conclusion from the premises President to all the subordinate functionaries of the 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 security the positive 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, my conclusions, apply only to newspapers, pamph-On the whole, then, it seems clear to me that a deputy lets, or other printed matter, the character of which is of postmaster, or other officer of the United States, is not 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 transmission through the instrument of enemies of the public peace, to disseminate, mails unsealel, and as to the nature of which he cannot in their behalf, within tho limits of any one of the Stat plead ignorance.
of the Union printed matter, the design and tendency of "It is intimated in one of the documents before which are to promoto 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 erectment, in a letter dated the 5th of December of that year, him into a censor of the 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 nono of its instrumentalities can be lawiully emtheir circulation.
ployed in inciting, even in the remotest degree, to tho very “We shall 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 heretoforo been actual fact, and may be such These citations show that a course of precedents has exagain. Suppose that some European Government-whether isted in this department for twenty-five years—known to in the prosecution of war, or induced by hostiliiy of purpose Congress, not annulled or restrained by act of Congri-in not yet become war, buttending towarus it, or in the spirit of accordance with which newspapers and other printed matmisdirected propagandism of its own particular social or ter, decided by postal officers to be insurrectionary, or tre 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 uifice of the case, be the duty, would it be the right, of the Government United States sol·ly by authority of the executive adminis. or 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 bebut 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-Day, of every officer of each State-nay, of every citizen of the United * JEFFERSON Davis thus expressed himself on this opinion States, to resist, and to do everything in his power to de. of Attorney General CosminG 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 assurtry-or of exhortations to insurrection in the form of handance of such action by the last Administration as would be biils, 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 Jitorney Gino private perce; defensible as an act of war on the part of an eral upon the local merits of the case, the question having enemy Government, but otherwise against natural law, been referred to him by the Postmaster General, the lion. against public law, against muuicipal 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 moro especially by all offi- eral, 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 agitathe 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 agree 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. d'puty post ister required knowingly to circulato such To Messrs. Robert Bowman, George B. Wilkinson, and A matter under penalty of indictment, removal from office, M. Harlow, committee, Yazoo City.