him from Bath in a chaise-and-four. He immediately went abroad, and he continued to reside on the continent till the peace of Amiens; when, on the advice of counsel, he came to England, wrote a letter to the Secretary of State announcing his return, and surrendered himself to take his trial." (Lives of the Chief-Justices, vol. 3, pp. 149, 150.)

Twenty years had thus elapsed: nevertheless, Wall was put on trial before a special commission; and the jury, after deliberating half an hour, returned a verdict of guilty, and sentence of death was immediately pronounced. Execution was respited until Lord Eldon and others of the ministry could examine the case; but, finally, the Governor was hanged on a gibbet, in front of the jail of Newgate, and, as Lord Campbell informs us, "amidst the shouts and execrations of the most numerous mob ever assembled in England to witness a public execution."

I mention this painful and singular case, not that I approve Wall's execution-for, although he was rightly convicted, I think he ought to have been pardoned-but to show that the sentence of a military tribunal acting irregularly, and, a fortiori, acting upon persons beyond its jurisdiction, can not avail as a defense to those who pronounce the sentence, or those who execute the sentence, when called to account, in due course of law, notwithstanding the lapse of many years.

And thus, if your Honor please, it ought to be. Otherwise, military officers would not only, as now, become too powerful to be restrained by the civil magistrates, but would purchase to themselves an immunity for all transgressions.

The rights of the people, as enumerated in the several clauses of the Constitution which I have read, can not be affected, in any degree, by the suspension of the privilege of the writ of Habeas Corpus. Harsh as that suspension would be, and unnecessary (as I think) except in the States where insurrection and rebellion prevail, it would not authorize any arrest of a citizen by the military power while the ordinary course of justice remains unobstructed, nor even, without a warrant, except in the cases I have already specified, by a civil magistrate. It would not dispense with the necessity of a trial by jury, and upon indict

ment: it would justify none of the acts of General Burnside in this particular case.

De Lolme, in his celebrated Essay on the Constitution of England, Book II, ch. 17, part second (note), says:

"At the times of the invasions of the Pretender, assisted by the forces of hostile nations, the Habeas Corpus Act was indeed suspended. . . But the executive power did not thus, of itself, stretch its own authority: the precaution was deliberated upon and taken by the representatives of the people; and the detaining of individuals, in consequence of the suspension of the act, was limited to a certain fixed time. Notwithstanding the just fears of internal and hidden enemies, which the circumstances of the times might raise, the deviation from the former course of the law was carried no further than the single point we have mentioned. Persons detained by order of the Government were to be dealt with in the same manner as those arrested at the suit of private individuals; the proceedings against them were to be carried on no otherwise than in a public place; they were to be tried by their peers, and have all the usual legal means of defense allowed to them-such as calling of witnesses, peremptory challenge of juries," etc.

And such Lord Eldon, while Attorney-General, and addressing the jury in Hardy's case, October 28, 1794, declared to be "the true constitutional meaning" of the act of Parliament, then in force, whereby the privilege of the writ of Habeas Corpus had been suspended. Little did he conceive, with all his inclinations toward an arbitrary and irresponsible government, and at the very time when he was endeavoring to maintain the authority of the crown against what he regarded as an extensive and most dangerous conspiracy-a time when the people of England stood aghast at the horrors of the French Revolution, and even doubted, from day to day, whether such anarchy would not extend to them-little, I say, did Lord Eldon conceive that a Major-General or a Field-Marshal could arrest men, other than soldiers, at his pleasure, and for offenses unknown to the law; could confine them in military prisons; could deprive them of the privilege of the writ of Habeas Corpus without any act of Parliament suspending that privilege; could sub

ject them to the form of a trial by courts or commissions composed of military officers, and upon charges and specifications alike indefinite, inconclusive, and frivolous!

And yet, sir, to that we have come-in the first century of our Republic, with a written Constitution less than eighty years old, in a country professing to be civilized, intelligent, refined, and (strangest of all) to be free! It is our case-if your Honor please your own case and mine; and not merely the case of Clement L. Vallandigham. He is the victim to-day; but there will be, and must be, other victims to-morrow. What rights have we, or what security for any right, under such a system as this?

"Every minist'ring spy,

That will accuse and swear, is lord of you,

Of me, of all our fortunes and our lives.
Our looks are call'd to question, and our words,

How innocent soever, are made crimes:

We shall not shortly dare to tell our dreams,
Or think, but 't will be treason."

And the excuse for it, as given by General Burnside, is that a rebellion exists in Tennessee, in Arkansas, in Louisiana, in Mississippi, in Alabama, in other States a thousand miles distant from us. Does any rebellion exist here? President Lincoln, by his proclamation of January 1, 1863, has undertaken to " designate" the States, and even "parts" of States, at present in rebellion; but I do not find the State of Ohio, nor the county of Montgomery, nor the city of Dayton so designated. How can the rebels, in addition to disclaiming their own rights under the Constitution of the United States, also forfeit the rights of my client? I ask General Burnside, or his counsel, to answer me that question; because, until it has been answered, and answered satisfactorily, there can be no excuse, no apology, not the least degree of palliation, for such extraordinary proceedings as have been avowed here, and vainly attempted to be justified.

You have presided in this Court almost thirty years; and, during that time, have heard and determined a vast number and variety of important controversies. But never, as I venture to

96

APPLICATION FOR WRIT OF HABEAS CORPUS.

affirm, have you been called to the discharge of a greater duty than upon this occasion. I had supposed, in the simplicity of my heart and understanding, that all the propositions for which I have contended were too firmly established in America, as well as in England, to be disturbed or even doubted. It seems otherwise; and, therefore, at unusual length, and without as lucid an order and as close an argument as I could wish, have I descanted upon the mighty themes of contest, in all past ages, between the supporters of arbitrary power and the defenders of popular rights. I pray that you will command the body of my client to be brought before you, in this court of civil judicature, and in the open light of day; to the end that he may be informed here of what he is accused, and may be tried on that accusation, whatever it be, in due form of law. Let us know the worst any man has to allege against him; and then let him stand before a jury of his countrymen, in the face of all accusers, for deliverance, or, if guilty, for condemnation.

I ask this, sir, in the interest of that Constitution which has been violated by his arrest and imprisonment-in the interest of that Union the fortunes of which now depend on the arbitrament of the sword-in the interest of that army which we have sent into the field to maintain our cause-in the interest of peace at home, and of unanimity in waging a battle so bloody and so hazardous-in the interest of liberty, of justice, of ordinary fairness between man and man.

I have tried to say what ought to be said, and no more, in vindication of the rights of the petitioner. God help me if I have said any thing which ought to have been omitted, or omitted any thing which ought to have been said!

ARGUMENT

OF

HON. AARON F. PERRY.

MAY IT PLEASE THE COURT:

WHEN General Burnside requested me to assist the District Attorney on this occasion, he forebore to give me any instructions, except to present such considerations to the judgment of the Court as should seem to me right and proper. I have a distinct impression that he has no preference that the questions here presented should be heard before any other jurisdiction or tribunal rather than this; and that he wishes his proceedings to be here discussed by his counsel, chiefly on the broad basis of their merits; that they should be made to rest on the solid ground of the performance of a high and urgent public duty. The main argument which I shall present to the Court will, therefore, be founded on the obligations, duties, and responsibilities of General Burnside as a Major-General in command of an army of the United States, in the field of military operations, for the purposes of war, and in the presence of the enemy. I shall not place it on any ground of apology, excuse, or palliation, but strictly and confidently on the ground of doing what he had a lawful, constitutional right to do; and on the ground of performing a duty imposed upon him as one of the necessities of his official position. I shall make no plea of an exigency in which laws are suspended, and the Constitution forgotten, but shall claim that the Constitution is equal to the emergency, and has adequately provided for it; that the act