has arisen. We have nothing to do with the validity of the law as a defence to the action. It is sufficient for the State court that the defence involves the construction and effect of a law of Congress. The case has then arisen when the courts of the United States may have jurisdiction, if Congress so directs. If the law does not afford a constitutional or valid defence, it cannot now be doubted that the learned justices of the United States Courts will so declare it, when the jurisdiction of such cases will remain in the State courts, as before the enactment of the law. It is not our duty to assert the independence of our State sovereignty and jurisdiction; for the final construction and effects of all acts of Congress may be brought before the United States Courts by the express provision of the Constitution. The manner of taking the cause to those courts is of consequence. The Supreme Court of the Union must be relied on to prevent its jurisdiction from being unlawfully extended by Congress. I am of the opinion, therefore, that Congress has the power to direct the transfer of such cases. In my opinion this application was necessary in order to vest the U. S. Circuit Court with the possession of the action, but the discussion has not been lost, inasmuch as it will be now settled that this Court will not, in this judicial district, take further cognizance of cases which have been transferred under this act of Congress. It is very proper that an order be entered transferring the cause to the U. S. Circuit, as it affords the evidence in the Court of the disposition made of it. In arriving at my conclusions I have consulted Story's Com. on the Constitution, chap. 38, 23903, 906, &c.; 1 Wheat., Martin vs. Hunter; 6 Wheat., Colien vs. The State of Virginia; 9 Wheat., Osborn vs. The Bank of United States. As a rule of practice I think the Court should not approve any sureties unless the amount of the bond is equal to the sum in which the defendant in the action has been held to bail, if bail has been required in the State Court. This fact should be made to appear to the satisfaction of the judge to whom the bond is presented for approval. The decision in this case will also embrace the case of Gudeman vs. Wool, argued at the same general term as the present case. The order appealed from should be reversed, and the motion below should be granted without costs. SUTHERLAND, J.-The question is not as to the constitutionality of the fourth section of the act declaring that the order or authority of the President, during the rebellion, shall be a defence in all Courts, to any order for any arrest, imprisonment, or act done, or omitted to be done, under or by color of the President's order, or of any law of Congress; but the question is as to the constitutionality of the fifth section of the act, anthorizing the defendant in any such action, to remove the same from the State Court to the Circuit of the United States for the district where the suit is brought for trial, on complying with certain requirements specified in the section; that is, ou entering his appearance, filing his petition stating the facts, offering good and sufficient surety, &c. The question presented by this appeal is not as to the constitutional power of the President to order the arrest, imprisonment, &c, or as to the constitutional power of Congress to authorize the President to order the arrest, imprisoument, &c.; but the question presented by the appeal is as to the constitutional power of Congress to give the Cir cuit Courts of the United States, primary or original, and (as to the State Courts) exclusive jurisdiction, of the trial of actions for such arrests, imprisonments, &c. In determining the question as to the constitutionality of the sixth section of the act, we must assume, I think, that the trial of this action will involve the determination of the question as the constitutionality of the fourth section; that Congress, in passing the act, considered that the trials of the actions to be removed to the Circuit Courts of the United States under it would involve the determination of the question as to the constitutionality of the fourth section, whether tried in the State or United States Courts; and that Congress intended by the fifth section to take from the State Courts, and give it to the Circuit Courts of the United States, the right and power to determine that question. Had Congress the constitutional power to do this? That is the question. If Congress had the power, then the order appealed from denying the defendant's motion to remove the action and all proceedings therein to the Circuit Court of the United States for the Southern District of New York should be reversed, and I think an order made directing such removal. If Congress had not the power, then the order appealed from should be affirmed. If no steps had been taken for the removal of the action from this Court, and the action should be tried in this Court, and the question as the constitutionality of the fourth section of the act should be decided adversely to the defendant by the Court of Appeals of this State, the Supreme Court of the United States would have final and conclusive appellate jurisdiction of the question. (Const. U. S. Art. 3; sec 25 of the Judiciary Act; 1 Stat. at Large, 85: Cohen vs. Virginia, 6 Wheaton, 264; Miller vs Nicholls 4 Wheaton, 311.) Cannot Congress give the Circuit Court of the United States original jurisdiction in any case to which this app-llate jurisdiction extends? In Osborn vs. United States Bank, 9 Wheaton, cited by Judge Leonard, Chief Justice Marshall said he could perceive no ground for saying that Congress could not. In that case one of the questions was whether Congress could constitutionally confer on the Bank the right to sue and be sued in every Circuit Court of the United States." It was held that such a suit was a case arising under a law of the United States, consequently that it was within the judicial power of the United States, and Congress could confer upon the Circuit Court jurisdiction over it. See, also, Curtiss's Com. on the Jurisdiction, &c., of the Courts of the United States, sections 12 and 13; the latter section, containing a quotation from another portion (p. 860) of the opinion of Chief Justice Marshall in Osborn ea, the Bank of the United States, apparently quite pertinent to the question in this case. I concur, then, in the conclusion of Judge Leonard, that Congress had the power to direct the transfer to the Circuit Court of the United States. Probably an order of this Court directing such transfer is not absolutely necessary, but to make one would be in ac cordance with usage in like cases; and besides, such an order would be the best evidence of the determination of this Court, that it no longer had jurisdiction of this action. It appearing that the defendant has complied with the requirements of the act for such transfer, the order appealed from should be reversed, and an order made by this Court for the removal of the action and all proceedings therein to the Circuit Court of the United States. Dissenting Opinion. CLERKE, J.-I see nothing whatever in the arguments of my brethren, or in those of other judges on the same subject, to induce me to recede from the position which I have attempted to maintain at Special Term. They have all alike, in my very humble judgment, unaccountably overlooked the only point claiming consideration on this great constitutional subject. According to the doctrine upheld by my brethren, we can scarcely conceive of any act committed by any officer of the General Government, under color of any authority derived from or under the President, which may not constitute a genuine, veritable case arising under the Constitution of the United States, and which, therefore, may not rightly come within the cognizance of their judicial power. It is only necessary to claim that it was committed under color of that authority, and was, therefore, justified by the Constitution, however moustrous and appalling the act may be, to make it, according to this doctrine, a case arising under that Constitution. For, of course, according to the terms of that claim, the claimant appeals through this remarkable statute, to the Constitution for his justification, and, however palpably frivolous such a claim may behowever palpably manifest may be the conviction that the Constitution no more sanctions such an act than it sanctions the burning of the Capitol, the dispersion of Congress, an i the shooting, imprisonment or exile of the men of whom it is composed, yet it is claimed to present a question, and, therefore, a case arising under the Great Charter of Constisutional Liberty in America--the perpetrator of the outrage making that a question which is unquestionably no question; and the judicial power of the State is ousted of its legitimate jurisdiction. Thus, this extraordinary statute prescribes not only that the character, but the mere assertion of the wrong-doer shall determine jurisdiction, and that the subject-matter, which has been always held, except in cases affecting Embassadors, other diplomatic Ministers and Consuls, as alone the criterion of jurisdiction, shall be excluded from consideration. Surely, if this can be done by Congress, the Government of the United States of America, is not as all men have heretofore supposed, incontestably a Government of limited powers and duties, and is, if not one of unlimited powers and duties, neverthe less, of very accommodating expansibility. This is a novel and strange theory of development in America But, it is asserted as the appellate power of the Supreme Court of the United States extends in certain cases to State tribunals, that this case would, after judgment, reach the Federal jurisdiction, and that, therefore, it may as well be transferred to the United States Circuit Court before judg ment. Even if the Supreme Court of the United States would entertain such a case on appeal this is no controlling reason why it should, necessarily, be transferred to the United States Circuit for adjudication in the first instance. For, the only question to be determined by us on this motion, is whether Congress has the power to transfer cases of this description to the Circuit Court of the United States, not whether, ultimately, it may reach the appeilate jurisdiction of the United States Supreme Court. The act of Congress, passed in 1789, "to establish the judicial courts of the United States," no doubt provides that a final judgment or decree in any suit in the highest court of law or equity of a State, where is drawn in question the validity of a statute of the United States, and the decision is against its validity, may be re-examined and revised or affirmed in the Supreme Court of the United States. But, if it is too clear for controversy that the statute is an outrage on the Constitution, if it is palpably usurpation, if it is plain to the most unlettered citizen, that the statute is an attempt to subvert all the securities which the founders of the Government have provided for the preservation of personal liberty, and to invest one man with unlimited dictatorial power, and, therefore, that the appeal was palpably frivolous, I presume the court would hear no argument on such an appeal, and would, forthwith, affirm the judgment or dismiss the writ. same is hereby suspended; but such suspension shall apply only to the cases of persons arrested or detained by order of the President, Secretary of War, or the general officer commanding the Trans-Mississippi Military Department, by the authority and under the control of the President. It is hereby declared that the purpose of Congress in the passage of this act is to provide more effectually for the public safety by suspending the writ of habeas corpus in the following cases, and no other: 1. Of treason, or treasonable efforts or combinations, to subvert the Government of the Confederate States. 2. Of conspiracies to overthrow the Government, or conspiracies to resist the lawful authority of the Confederate States. 3. Of combining to assist the enemy, or of communicating intelligence to the enemy, or giving him aid and comfort. 4. Of conspiracies, preparations and attempts to incito servile insurrection. Would they, for instance, hearken to an appeal involv ing the validity of an act of Congress giving the President or any other member of the Government power, by a coup 5. Of desertions or encouraging desertions, or harboring dda, to extinguish the legislative branch, as Cromwell did deserters, and of attempts to avoid 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, and were not (if said debasement can be imagined) | gally owe military service, his superior officer shall grant by force, by fear, or by corrupt appliances or selfish aspira-prompt relief to the oppressed party, and the subordinate tions, robbed of independence. So that the consideration shall be dismissed from office. ⚫ whether the act is not palpably void must present itself on appeal as it now presents itself to us on this motion; and, if it is palpably void, I repeat it would not be treated on appeal as worthy of being for a moment entertained. 6. Of spies and other emissaries of the enemy. 7. Of holding correspondence or intercourse with the enemy, without necessity, and without the permission of the Confederate States. I still consider the defence in this case just as destitute of color as the case which I have imagined. Whether, under the pretext of authority from the President of the United States, any one citizen, at his mere will and pleasure, without any intervention of the judicial tribunals, can incar-war held by the Confederate States. cerate another citizen cot subject to military law in a loathsome dungeon, for many months, or for a day or an hour, cannot, under any circumstances in which the nation may be placed, be treated as a question constituting a case arising under the Constitution; and any statute which declares the contrary is palpably void. The order at Special Term should be affirmed with costs. 8. Of unlawful trading with the enemy and other offences against the laws of the Confederate States, enacted to promote their success in the war. 9. Of conspiracies, or attempts to liberate prisoners of 10. Of conspiracies, or attempts or preparations to aid the enemy. MILITARY ARRESTS. The following order has been issued by General Augur: HEADQUARTERS DEPARTMENT OF WASHINGTON, 22D ARMY CORPS, June 20, 1864. GENERAL ORDER No. 51.-First: Hereafter no citizen, commissioned officer, or enlisted man, will be arrested on the report of a detective employed by any officer subject to the jurisdiction of this department, except in extreme cases where there is no doubt of guilt, and immediate action is needed, until the report has first been forwarded for action at these headquarters. Second: All officers serving in this department employing detectives will send with as little delay as possible a list of those employed to these headquarters, specifying the authority by whom employed; and they are notified that they will be hell responsible for improper action or abuse of authority on the part of their employees. By command of Major General C. C. AUGUR: J. H. TAYLOR, "Confederate" Legislation. SUSPENSION OF THE WRIT OF HABEAS CORPUS. 11. Of persons aiding or inciting others to abandon the Confederate cause, or to resist the Confederate States, or to adhere to the enemy. 12. Of unlawful burning, destroying or injuring, or attempting to buru, destroy or injure any bridge or railroad, or telegraph line of communication, or other property with the intent of aiding the enemy. 13. Of treasonable designs to impair the military power of the Government by destroying or attempting to destroy the vessels or arms, or munitions of war, or arsenals, foun deries, workshops, or other property of the Confederato States. The remaining sections are unimportant. The act to continue in force 90 days after meeting of next Congress. EXTENT OF POWER CLAIMED BY THE GOVERNMENT. The instructions of the War Department with respect to proceedings under the law making a limited or quasi sus pension of the habeas corpus, remove many grounds of clamor, and propose what may be considered as a very moderate execution of the law. Parties arrested, in the cases specified in the law, will not be denied a trial, but their cases will be investigated by commissioners, who will Respecting this offence, this order was issued in 1861: WAR DEPARTMENT. RICHMOND, November 25, 1861. SIR: Your report of the 20th instant is received, and I. now proceed to give you the desired instructions in relation to the prisoners taken by you among the traitors of East Tennessee. First. All such as can be identified in having been engaged in bridge burning are to be tried summarily by drumhead 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 A Bill to suspend the privilege of the writ of habeas corpus L. That during the present invasion of the Confederate hanging in the vicinity of the burnt bridges. Second. All such as have not been so engaged are to be treated as prisoners of war, and sent with an armed guard to Tuscaloosa, Alabama, there to be kept imprisoned at the depot selected by the Government for prisoners of war. Whenever you can discover that arms are concentrated by these traitors, you will send on detachments, search for and seize the arms. In no case is one of the men known to have been up in arms against the Government to be released on any pledge or oath of allegiance. The time for such measures is past. They are to be held as prisoners of war, and held in jail till the end of the war. Such as come in voluntarily, take the oath of allegiance, and surrender their arms, are alone to be treated with leniency. Your vigilant execution of these orders is earnestly urged by the Government. Your obedient servant, J. P. BENJAMIN, Secretary of War. Col. W. B. Woon, Knoxville, Tenn. P. S.-Judge Patterson, Col. Pickens, and other ring. leaders of the same class, must be sent at once to Tuscaloosa to jail as prisoners of war. be appointed for these duties in the different military de- the fact to the general or other officer in command, who But will immediately discharge the prisoner from arrest. In cases where persons not belonging to the military service shall apply to any court or officer in the Confederate States for a writ of habeas corpus, it will be the duty of the officer having the command or custody of such person forth with to report the case, with all the relevant facts, to the War Department, for instructions as to the proper answer to be made to such writ. Newspaper Exclusion and Suppression. August 16, 1861-In the United States Circuit Court of New York the grand jury presented the Journal of Commerce, the Daily News, the Freeman's Journal, and the Brooklyn Eagle ns aiders and abettors of treason, in terms following: To the Circuit Court of the United States for the Southern District of New York: offices for the West and South, including over one thousand copies for Louisville, and nearly five hundred copies for Baltimore, Washington, Alexandria, and Annapolis. The Marshal also took possession of the office of the Christian Observer in consequence of a late violent article on the “naholy war." the mails, and in due time, the subject engaged Other newspapers were similarly excluded from the attention of Congress; resolutions of inquiry having been offered in the Senate, January 14, 1863, by Mr. CARLILE, and in the House, December 1, 1862, by Mr. VALLANDIGHAM. 1863, January 20-The Committee on Judiciary of the House of Representatives made a report, which embodied the following letter of the Postmaster General: POST OFFICE DEPARTMENT, January 5, 1863. SIR: I have the honor to acknowledge the receipt of the communication signed by you in behalf of the Judiciary Committee, embracing a copy of the resolution of the House of Representatives, in the following words: "Resolved, That the Committee on the Judiciary be in structed to inquire and report to the House at an early day by what authority of Constitution and law, if any, the Postmaster General undertakes to decide what newspapers may and what shall not be transmitted through the mails of the United States." On the first day of the last session of Congress, being the earliest opportunity after the action to which the resolution relates, I submitted to Congress a statement of my action, and of the general reasons and authority for the same, in 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 represented to following facts to the Court and ask its advice thereon: be, and were, in fact, devoting their columns to the furtherThere 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 arms against the Federal Government by expressing sym- interests, to thwart the efforts made to preserve the integ 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 the employment of treason without incurring its judicial penalties. To await force to overcome them. These papers are the New York the 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 by 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 named of these has just published a list of newspapers in the free States opposed to what it calls "the present unholy war”—a war in the defence of our country and its institutions, and our most sacred rights, and carried on solely for the restoration of the authority of the Government. The Grand Jury are aware that free Governments allow liberty of speech and of the press to their utmost limit, but there is nevertheless a limit. If a person in a fortress or an army were to preach to the soldiers submission to the enemy he would be treated as an offender. Would he be more culpable than the citizen who, in the midst of the most formidable conspiracy and rebellion, tells the conspirators and rebels that they are right, encourages them to persevere in resistance, and condemns the effort of loyal citizens to overcome and punish them as an "unholy war?" If the utterance of such language in the streets or through the press is not a crime, then there is a great defect in our laws, or they were not made for such an emergency. The conduct of these disloyal presses is of course condemned and abhorred by all loyal men; but the Grand Jury will be glad to learn from the Court that it is also subject to indictment and condign punishment. All which is respectfully presented. NEW YORK, August 16, 1861. [Signed by all the Grand Jurors.] CHARLES GOULD, Foreman. ORDER OF THE POSTMASTER GENERAL. POST OFFICE DEPARTMENT, August 22, 1861. SIR: The Postmaster General directs that from and after your receipt of this letter none of the newspapers pubfished in New York city which were lately presented by the grand jury as dangerous, from their disloyalty, shall be forwarded in the mails. I am, respectfully, your obedient servant, SEIZURES OF NEWSPAPERS. PHILADELPHIA, August 22-On the arrival of the New York train this morning Marshal Millward, and his officers, examined all the bundles of papers and seized every copy of the New York Daily News. The sale of this paper is totally suppressed in this city. Marshal Millward also seized all the bundles of the Daily News at the Express "The freedom of the press is secured by a high constitutional sanction. But it is freedom and not license that is guaranteed. It is to be used only for lawful purposes. It cannot aim blows at the existence of the Government, the Constitution, and the Union, and at the same time claim its protection. As well could the assassin strike his blow at human life, at the same time claiming that his victim should not commit a breach of the peace by a counter blow. While, therefore, this department neither enjoyed nor claimed the power to suppress such treasonable publications, but left them free to publish what they pleased, it could not be called upon to give them circulation." It could not and would not interfere with the freedom secured by law, but it could and did obstruct the dissemination of that license which was without the pale of the Constitution and law. The mails established by the United States Government could not, upon any known principle of law or public right, be used for its destruction. As well could the common carrier be legally required to transport a machine designed for the destruction of the vehicle conveying it, or an innkeeper be compelled to entertain a traveller whom he knew to be intending to commit a robbery in his house. "I find these views supported by the high authority of the late Justice Story, of the Supreme Court of the United States. He says, in commenting on that clause of the Constitution securing the freedom of the press: "That this amendment was intended to secure to every citizen an absolute right to speak, or write, or print whatsoever he might please, without any responsibility, public or private, therefor, is a supposition too wild to be indulged in by any rational man. This would be to allow to every citizen the right to destroy at his pleasure the reputation, the peace, the property, and even the personal safety of cvery other citizen. A man might, out of mere malice or revenge, accuse another of the most infamous crimes; might excite against him the indignation of all his fellowcitizens by the most atrocious calumnies; might disturb, nay, overturn all his domestic peace and embitter his parental affections; might inflict the most distressing punishment upon the weak, the timid, and the inuocent; might prejudice all a man's civil and political and private rights; and might stir up sedition, rebellion, and treason, even against the Government itself, in the wantonness of his passions, or the corruption of his heart. Civil society could not go on under such circumstances. Men would then be obliged to resort to private vengeance to make up the def ciency of the law; and assassinations and savage cruelties would be perpetrated with all the frequency belonging to barbarous and cruel communities. It is plain, then, that the language of this amendment imports no more than that every man has a right to speak, write, and print his opinions upon any subject whatever, without any prior restraint, so always that he does not injure any other person in his rights, person, property, or reputation; and so always that he does not thereby disturb the public peace, or attempt to brert the Government, " "Of the cases presented for my action, upon the principles above named, I have by order excluded from the mails twelve of these treasonable publications, of which several had been previously presented by the grand jury as incendiary and hostile to constitutional authority." | siderations there is reason to doubt whether the abolition- "Upon these grounds a postmaster may well hesitate to be the agent of the abolitionists in sending their incendiary publications into States where their circulation is prohibited by law; and much more may postmasters residing in 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 as affirming that the sugges during that long session, any inquiry or complaint was made, tions here thrown out ought, without the action of higher or objection taken touching that action, or the considera- authority, to be considered as the settled construction of the tions then presented in support of it. From this it was law, or regarded by postmasters as the rule of their future fairly inferred 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 principles so grave and consequences so the Constitution of the United States, then shaken by the serious, the safest course for postmasters and the best for assanits of its avowed enemies. the country is that which you have adopted. 雄 The immediate 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 crimes against the States which strike partment 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 and digest a safe presentment was in the following words. [See ante for pre- rule for the future guidance of the department. sentment.] "While persisting in a course which philanthropy recommends and patriotism approves, I doubt not that you and the other postmasters who have assumed the responsi bility of stopping these inflammatory papers in their pas sage to the South will perceive the necessity of performing your duty in transmitting and delivering ordinary newspapers, magazines, and pamphlets, with perfect punctuality. Occasion must not be given to charge the postmasters with carrying their precautions beyond the necessities of the case, or capriciously applying them to other cases in which there is no necessity; and it would be the duty, as well as the inclination, of the department to punish such assumption with unwonted severity. This suggestion I do not make because I have any apprehension that it is needed for your restraint, but because I wish this paper to bear upon its face a complete explanation of the views which I tako of my own duty in the existing emergency." The question was afterwards repeatedly presented in this department. In February, 1857, it was brought before Postmaster General Campbell, in connection with the exclusion of the Cincinnati Gazette from postal privileges in Mississippi. A certain postmaster at Yazoo had denied it the privilege of his post office. Mr. Campbell referred the question to the Attorney General of President Pierce's administration. Under date of March 2, 1557, the Attorney General, as the law officer of the Government, replied officially to the Postmaster General, justifying such action on the part of postmasters, and asserting, among others, the following arguments and conclusions: This authoritative exhibition of the character of these papers, as disseminators of treason and instigators of the highest crime known to our laws, could not be disregarded, secompanied, as it was, by representations of their dangerous effect upon the military operations of the country. Entertaining the highest possible regard for the liberty of the press, distinguished from its uncontrolled and criminal license, I would not, except in time of war, have adopted the arguments of my predecessors in office, in justification of the non-delivery of printed matter sent through the mails. The question has been repeatedly presented to my predecessors in time of peace in relation to printed matter styled incendiary," or "abolition in its character," and in respect to the States now in insurrection. While justifying postmasters in their refusal to receive or forward mail matter described by the general terms of the postal laws as mailable matter," an eminent Postmaster General of the administration of General Jackson, under date of August 22, 1865, addressed a letter to the postmaster at New York giving his views upon the question under discussion. The New York postmaster had assumed to decide that certain newspapers, placed in that post office for conveyance in the mails, were incendiary in their character, and calculated to promote insurrection. He refused to forward them. The Postmaster General, declining himself to decide upon the character of the publications in question, and refusing to make the orders thereon, justified his deputy postmaster in the decision made by him, and supported him by the following arguments, extracted from his letter of that date, to which the attention of Congress was subsequently called. That Congress, however, by its inaction, seemed to concur in the right and the policy of excluding such alleged treasonable and insurrectionary publications from the mails. POST OFFICE Department, August 22, 1835. • "Postmasters may lawfully know, in all cases, the con tents of newspapers, because the law expressly provides that they shall be so put up that they may be readily examined; and if they know those contents to be calculated and designed to produce, and, if delivered, will certainly produce, the commission of the most aggravated crimes upon the property and persons of their fellow citizens, it cannot be doubted that it is their duty to detain them, if not even to hand them over to the civil authorities. "ATTORNEY GENERAL'S OFFICE, "March 2, 1857. very much simplified. It is this: Has a citizen of one of "With these premises we have the main question the United States plenary indisputable right to employ the functions and the officers of the Union as the means of enabling him to produce insurrection in another of the United States? Can the officers of the Union lawfully lend its functions to the citizens of one of the States for the purpose of promoting insurrection in another State? "Taking the last of these questions first, it is obvious to say that, inasmuch as it is the constitutional obligation of the United States to protect each of the States against 'domestic violence,' and to make provision to suppress insur*rections,' it cannot be the riglit 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 mail, for the purpose of preventing or punishing isolat-promote, or be the instrument of promoting, insurrection in ed crimes against individuals, how much more important any part of the United States. is it that this responsibility should be assumed to prevent "As to the first question, likewise, it seems obvious to say, insurrections and save communities? If, in time of war, a that, as insurrection in any one of the States is violation of postmaster should detect a letter of an enemy or spy pass-law, not only so far as regards that State itself, but also as ing 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 incite insurrection in any one of the States. destruction, 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 lawful right to do that which he is bound by law to prevent when attempted by any and all others; and monstrous to pretend that a citizen of one of the States has a moral right to promote or commit insurrection or domestic violence, that is, robbery, burglary, arson, rape, and murder, by wholesale, in another of the States. As a measure of great public necessity, therefore, you and the other postmasters who have assumed the responsibility of stopping these inflammatory papers will, I have no doubt, stand patified in that step before your country and all mankind. | "Are the officers of the United States compelled by the Constitution and laws to become the instruments and accomplices of those who design to baffle and make nugatory the constitutional laws of the States; to fill them with sedition and murder and insurrection; to overthrow those institutions which are recognized and guarantied by the Constitution itself? In these con * "These considerations, it seems to me, are decisive of the question of the true construction of the act of Congress. of that it is impossible for me to doubt. Its enactment is, that if any postmaster shall unlawfully detain,' he shall be subject to fine, imprisonment, and disqualification. Then, if the thing be of lawful delivery, it cannot be lawfully detained; while, on the other hand, it cannot be unlawful to detain that which it is unlawful to deliver. Such is the plain language and the manifest import of the act of Congress. "I do not mean to be understood that the word 'unlawfully' of the act determines the case: on the contrary, my conclusion would be the same, though that word had not been here inserted. By employing it, indeed, the act expressly admits that there may be lawful cause of detention. But such lawful cause would not the less exist, although its existence were not thus expressly recognized. And, of all conceivable causes of detention, there can be none more operative than treasonableness of character, for in every society the public safety is the supremest of laws. "Nay, if, instead of expressly admitting lawful causes of detention, the act had undertaken to exclude them-if, for instance, it had in terms required the postmasters to circulate papers, which, in tendency and purpose, are of character to incite insurrection in any of the States-still my conclusion would be the same. I should say of such a provision of law it is a nullity, it is unconstitutional; not so by reason of conflict with any State law, but because inconsistent with the Constitution of the United States. "The Constitution forbids insurrection; it imposes on Congress and the President the duty of suppressing insurrection; this obligation descends through Congress and the President to all the subordinate functionaries of the Union, civil and military; and any provision of an act of Congress requiring a Federal functionary to be the agent or minister of insurrection in either of the States would violate palpably the positive letter, and defeat one of the primary objects, of the Constitution. "These, my conclusions, apply only to newspapers, pamphlets, or other printed matter, the character of which is of public notoriety, or is necessarily brought to the knowledge of the postmaster by publicity of transmission through the mails unsealed, and as to the nature of which he cannot plead ignorance. "It is intimated in one of the documents before me that to permit a deputy postmaster to detain a newspaper because of its imputed unlawfulness would be to erect him into a censor of the press. These are but words of rhetorical exaggeration. Public journals are a necessary part of our social life, just as much as the steamboat, the railway train, or the telegraph. There is not the least reason to apprehend that we shall suffer ourselves to be deprived of them by the interposition of unlawful impediments to their circulation. **"We shall appreciate the true legal relation of the whole question if we consider a supposition which has more than once heretofore been actual fact, and may be such again. Suppose that some European Government-whether in the prosecution of war, or induced by hostility of purpose not yet become war, but tending towards it, or in the spirit of misdirected propagandism of its own particular social or political opinions-should undertake to produce revolution or insurrection in the United States. Would it, in that case, be the duty, would it be the right, of the Government or officers of the Union to aid the foreign Government in its inimical machinations? To this general inquiry, of course, there can be but one possible answer. It would be the manuffest duty of every officer of the United States-nay, of every officer of each State-nay, of every citizen of the United States, to resist, and to do everything in his power to de. feat all such machinations; for every citizen of the United States is under engagement, express or implied, to uphold and maintain the Constitution. and disqualification? Is the inconvenience which the foreign Government or its emissary may suffer, in not being able to effect the free circulation of such treasonable inutter or the inconvenience which the disaffected person to whom. it was addressed suffers, in his not being able to receive and to circulate further such treasonable matter-are these inconveniences to outweigh the inconvenience to the whole country, as well as to individuals, of insurrection, and of civil or servile war? Is that the true construction of the act of Congress? I think no legal expositor could hesitate to say, no. "Now in what does the general case supposed, with its all but self-evident conclusions, differ from the specific casa under consideration? Simply, that any European Government possesses the sovereign right, as an act of war, to attack us with attempts to excite insurrection as well as with cannon-subject to be repelled by the sovereign power of the Union-but no citizen of the United States possesses legal right to promote rebellious acts in any part of the country, whetlier as against the authority of the United, States or of the particular State in which he is, or of any other of the States. * * "In fine, the proposition may be made universal to the effect that no person in the United States, whether he be citizen, subject, or alien, has the legal right to promote rebellion. * In the foregoing series of supposi tions we have reasoned out a conclusion from the premises of the attempt of a foreign Government, by the use of our mails and post offices, to promote insurrection in the United States. And shall not the citizens of one of the States of the Union be held entitled to the same security from attempts to promote insurrection among them, on the part of their fellow-citizens of other States? * On the whole, then, it seems clear to me that a deputy postmaster, or other officer of the United States, is not required by law to become knowingly the enforced agent or instrument of enemies of the public peace, to disseminate, in their behalf, within the limits of any one of the States of the Union printed matter, the design and tendency of which are to promote insurrection in such State."* Again, in 1859, Mr. Holt, then at the head of this department, in a letter dated the 5th of December of that year, addressed to a postmaster in Virginia, adhered to the prece dents, and said: "One of the most solemn constitutional obligations imposed on the Federal Government is that of protecting the States against 'insurrection' and 'domestic violence;' of course none of its instrumentalities can be lawfully employed in inciting, even in the remotest degree, to the very crime which involves in its train all others, and with the suppression of which it is especially charged." These citations show that a course of precedents has existed in this department for twenty-five years-known to Congress, not annulled or restrained by act of Congress-in accordance with which newspapers and other printed matter, decided by postal officers to be insurrectionary, or treasonable, or in any degree inciting to treason or insurrection, have been excluded from the mails and post offices of the United States solely by authority of the executive admini tration. This, under the rules settled by the Supreme Court of the United States, as applicable to executive construction of laws with whose execution the departments are specially *JEFFERSON DAVIS thus expressed himself on this opinion of Attorney General CUSHING a few months after its publi cation: WASHINGTON, January 4, 1858. GENTLEMEN: When I last addressed you in answer to your "In the general contingency supposed it is quite imma-letter communicating 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 promised 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 hand-ance of such action by the last Administration as would be bills, newspapers, or pamphlets. In whatever manner at- satisfactory to you. tempted, the thing itself would be an act of wrongful or hostile attack on our sovereignty and on our national and private peace; defensible as an act of war on the part of an enemy Government, but otherwise against natural law, against public law, against municipal law; and therefore, 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 offi-eral, and so satisfactorily disposes of the question at issue cers, 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. "The general supposition includes printed, equally with oral, exhortations to insurrection. Take now, by itself, the case of printed matter of that description. Is it the legal duty of the Post Office Department knowingly to circulate such matter? Is it the legal duty of deputy postmasters? Or reducing the general supposition down to its narrowest expression in the limited exigencies of the present case, is a deputy postmaster required knowingly to circulate such matter under penalty of indictment, removal from office, I have thus leng delayed the promised communication in expectation of receiving the opinion of the Attorney General upon the legal merits of the case, the question having been referred to him by the Postmaster General, the Hon. James Campbell. Concurring fully with you in your opinion of the powers of a State, the duty of its citizens, and the obligation of our community in such contingency as that presented by the case reported in your letter, I trust we shall also agree that the matter has been concluded in a manner worthy of the State-Rights Administration under which it arose. With great regard, I am your friend and fellow-citizen, JEFFERSON DAVIS. To Messrs. Robert Bowman, George B. Wilkinson, and A M. Harlow, committee, Yazoo City. |