. But, the defendants having filed their petitions for the removal of the case under the fifth section of the act of Congress, approved March 3, 1863, "relating to habeas corpus and regulating judicial proceedings in certain cases," which, if applicable, and not clearly invalid, so far as applicable, would require that the prayer of the defendants should be granted, no objection to the manner and form in which the application has been made having been raised by the plaintiff.

[Here follows the sections of the law, as quoted above.]

The mere reading of this fifth section, of itself, shows its applicability to the case before us; indeed, I believe that is not denied by the council for the plaintiff.

But it is claimed that the law is invalid, because not authorized by the Constitution of the United States, and because, when applied to the case in hand, is ex post facto, the right of action having accrued prior to the passage of the law. Whatever may be said of the attempt in the fourth section to create a defence, or provide an indemnity against trespasses committed prior to its passage, cannot be urged successfully against the fifth section, which only affects the remedy, and does not, in any manner, touch either the subjectmatter of the action or of the defence.

These sections of the act are so far distinct and separable, that the fifth may be sustained independent of the fourth.

The object of the fourth section seems to be, to declare what is, or to provide what shall be, a defence in certain cases, to wit: "any order of the President, or under his authority." This applies only to cases where there is an order, and constitutes such order a defence in all courts where it shall be pleaded, whether in State or Federal Courts. The object of the fifth section is to provide a mode for the transfer of certain cases from the State to the Federal Courts, to wit: "all suits or prosecutions for act done or committed by virtue or under color of any authority derived from the President, or any act of Congress." This section applies to cases not included in the fourth section; it applies to all such cases as stated, whether there be any order or not.

In order to secure the benefit of it, its provisions must be strictly followed. Thus it will be seen that either of these sections may be invoked without the other, and that the fifth is applicable to cases to which the fourth is not; .and while the object of the fourth is to provide or declare rights, the object of the fifth is to regulate the practice in those and certain other cases. For these reasons, the two sections are so far separable and independent of each other, that the fifth may be held constitutional and the fourth unconstitutional. And, as it is not claimed that the fifth section is of itself unconstitutional, but only becomes so by reason of its inseparable connection with the fourth, I conclude that, as there is no such connection between them, the argument fails, and the Court may be justified in holding the fifth valid, without determining the validity of the fourth.

It will not be denied but that the Legislature of Ohio might, even after the right of an action of trespass in favor of a party had accrued against a Constable or Sheriff, pass a law providing that where such Constable or Sheriff had been sued in trespass, before a Justice of the Peace, as an individual, that if

such officer desired to justify under a writ, and should make that known to the Justice, then it should be his duty to certify the case to a Court of Record having cognizance of the official acts of such defendant. Neither the subjectmatter of the right of action nor the defence would be in the least interfered with; the mode of proceeding and the remedy are changed; that is all. A more appropriate tribunal is provided; and so here this fifth section provides another tribunal- one having cognizance of United States officers, their official acts, and of the Constitution and laws of the United States, under which they act no new defence is created, nor the right of action any way impaired. This section, therefore, is not invalid on the ground of its being retroactive.

It is, however, claimed that the facts set forth in the petition of defendant can constitute no defence, as the order under which the arrest was made was issued without authority under the Constitution of the United States, or the laws thereof, and that the fourth section of the act cannot support the defence, although in terms it may include it for two reasons: first, because that section attempts to create a defence to a valid cause of action after it arose, and is, therefore, retroactive; and, second, because Congress can confer no power on the President to issue, or cause to be issued, such orders, either in time of war or peace, by virtue of any grant in the Constitution, by inference or otherwise; and that the attempt, therefore, to make such defence, is a nullity, and being so, the defence and the application to remove must fall together.

As to the first reason, suffice it to say, "sufficient unto the day is the evil thereof." When the defence provided by the fourth section is set up upon the trial of the cause upon its merits, either in this court or in the court to which it may be removed, it will be time enough to decide the question. To do so now would be to prejudge the case without a full hearing on the merits, and, if decided for the defendants, there would be no need for a removal, and if for the plaintiff, the only matter left would be an inquiry into damages; it would be equivalent to the decision of a demurrer to defendant's answer, on this preliminary application, and would be taking from the tribunal whose jurisdiction is sought, one of the questions upon which it should pass.

Again, granting that this fourth section is, so far as the case at bar is concerned, ex post facto in terms, and should be so held when the case is tried upon its merits, we are brought to consider the second reason given for its invalidity. Suppose the power to issue the order in question existed in the President, independent of section fourth, would its enactment annul that power, or only declare it? The act in question does not attempt to confer the power on the President to issue, or cause to be issued, such order; it merely declares that such orders, when issued shall be a good defence, proceeding upon the hypothesis, as we suppose, that he always possessed the power; so that in this view the fourth section partakes more of the nature of an act declaratory, than of the enactment of a new law conferring power. Enough, perhaps, has already been said to justify this court in granting the prayer of the defendants' petitions, and leave the question as to the authority of the War Department to issue the order set forth, for decision in the Circuit Court as the appropriate tribunal. But, inasmuch as it is claimed by the plaintiff, that no such authority, or color of authority exists, and that therefore there is no foundation for the jurisdiction

sought by the defendants, I will proceed to offer reasons and authority, to show that it is at least a question of serious doubt, and, therefore, proper for the United States Court, as the doubt should be resolved in favor of the law.

Then, let us inquire into the power of the President, under the constitution, as commander-in chief of the army and navy, in time of a fearful rebellion like the present, to issue, or cause to be issued, such orders of arrest, &c. We all know the history of the sad times that have fallen upon us. The fact of a most violent, bloody, and terrific war, threatening our entire destruction as a nationthe imminent and immediate danger which threatens us in all we have and are in life—and of this contemporaneous history, of course the court should and will take notice.

In view of this, then, let us turn to the petition of the defendant David Tod, and ascertain, if we can, something of the cause of the arrest. It appears in the petition that the defendant, prior to the issuing of the order, wrote a letter to the War Department, enclosing certain marked editorials of the Watchman, of which Kees was editor and publisher, calling the attention of the Secretary of War thereto, and expressing a hope that the Secretary would at once put Kees, with his secession rebel friends, in Camp Chase Prison, &c. Copies of the editorials are referred to in, and filed with, the petition. In the article of June 6, 1862, this passage occurs: "We advised all Democrats to stay at home, and let the authors and provokers of this war, the Abolition Republicans, fight out their own war themselves; this is what ought to have been done. If such had been the policy of the Democracy, we would not to-day have a devastated country, drenched in fraternal blood." Again, in an editorial article of the Watchman, June 13, 1862, is this question, (after speaking of Ben. Butler in exceedingly harsh terms,) "Why don't the men of New Orleans shoot the infamous wretch like they would a reptile or a dog." These, with many kindred extracts, are filed with the petition, and are characterized in the petition of Governor Tod as highly libellous, inflammatory and treasonable in character, well calculated and intended to prevent enlistments, weaken the military power of the government, and produce opposition to it in its efforts to crush the rebellion, and excite further rebellion. This is all the information we have as to the cause of the arrest of Kees; whether the War Department had other and further foundation we know not- the presumption is, so far as this motion is concerned, that the information it had, whether under oath or otherwise, was deemed sufficient by it, for his arrest; sufficient to establish the fact, that the danger from Kees to the public service, while left at liberty, was immediate and impending, and that the urgent necessity for the public service demanded his arrest. Whether this was so or not, I do not undertake to say, nor is it necessary to decide, in disposing of this motion.

Article 3d, Section 2d, of the Federal Constitution provides that "The judicial power (of the United States) shall extend to all cases in law and equity arising under this Constitution and the laws of the United States," &c.

The President is commander in-chief of the army and navy, by express provision of the Constitution. Now, if the power to issue this order of arrest is incident to his office as Commander-in-chief, then, by necessary implication, the power is derived from the Constitution, without the aid of the fourth section

referred to, and, if Kees was arrested by virtue of such order, then the case arose under the constitution, and the United States courts have jurisdiction, and, as we have seen, it may be transferred in the manner pointed out by the fifth section of that act, independent of the fourth.

And, if such power belongs to the President, as an incident to his office of Commander-in-chief, no question but he may transfer it to his subordinates, for all the war power vested in him may be, and is, distributed to the vast army of war officers who act under him as his agents. Upon this question there is, and has been, a great conflict of opinion, both legal and political. The order by which Mr. Vallandigham was arrested, was from the same source of power. Judge Leavitt passed upon the question and upheld the power, and Mr. Vallandigham was tried and sentenced under it.

It is claimed that the power in question is exercised under what is called martial law, or the right of war, and not under military law, which, it is said, is defined by the articles of war and the decisions under them, and is for the government of the army, &c. And it is claimed that this martial authority belongs, as a necessary incident, to the commander-in-chief, and that when that office is conferred, the necessary incident, in time of war, is conferred with it, and is as much a part of the office as any other.

Now, if this be so, it follows, of course, that when the office of commanderin-chief is conferred by the Constitution upon the President, this martial power is also conferred and secured, as clearly as the right of trial by jury, the liberty of the person, the freedom of speech and of the press, is secured to the citizen in time of peace.

The question here is, not whether the power was exercised under proper restraint, but whether it exists all, and it is not necessary to its exercise that martial law shall first have been declared. Cases are numerous, both in America and in Europe, where the authority, of the nature of the power in question has been exercised in time of war, by the commander-in-chief and his subordinates, in the absence of the declaration of martial law, and afterwards sustained by the civil courts. In the case of Mitchell vs. Harmony, reported in 13 Howard, 115, which was an action brought by the plaintiff against the defendant, to recover damages for the seizure of property, as a commander in the Mexican war, under the pretext of military necessity, Chief Justice Taney, in delivering the opinion of the court in that case, said, "It is impossible to define the particular circumstances of danger or necessity in which the power may be lawfully exercised. Every case must depend on its own circumstances. It is the emergency that gives the right. In deciding upon this necessity, however, the state of facts, as they appeared to the officer at the time he acted, must govern the decision, for he must necessarily act upon the information of others as well as his own observation. And if, with such information as he had a right to rely on, there is reasonable ground for believing that the peril is immediate and menacing, or the necessity urgent, he is justified in acting upon it, and the discovery afterwards, that it was false and erroneous, will not make him a trespasser." Now, it is urged that the power exercised by the defendants in the case named, was a partial exercise of martial law, and did not depend upon time or place, but upon the emergency, and that it was the emergency that gave the right to exercise it.

Chancellor Kent lays down the doctrine that martial law is quite a distinct thing from military law; that it exists only in time of war, and originates only in military necessity. It derives no authority from the civil law, no assistance from the civil tribunals, for it overrules, suspends, and replaces them. See Cushing's Opinions of Attorney Generals of the United States, vol. 8, page 365, &c., and the authorities there cited. See also the case of Luther vs. Borden, et. al., 7 Howard, page 1.

It is also claimed that Washington's army exercised the power in question, during the whiskey insurrection of 1794 and 1795, and that General Wilkinson, under the authority of Jefferson, exercised it during the Burr conspiracy, in 1806; and that General Jackson called it into requisition at New Orleans, in 1814.

In the case of the application of Nicholas Kemp, for a writ of habeas corpus, the Supreme Court of Wisconsin recently decided against the power it gave the President to suspend the writ, but recognized the war right, or martial law, under certain limitations.

See also the case of Brown vs. the United States, book 8, Cranch, page 153, where Chief Justice Marshall, in delivering the opinion of the court, holds that “as a consequence of the power of declaring war and making treaties, &c., when the legislative authority has declared war, the Executive, to whom its execution is confided, is bound to carry it into effect; he has a discretion vested in him as to the manner and extent: but he cannot, morally, transcend the rules of warfare established among civilized nations."

See Vattel, pages 5 and 6, where the rule is laid down, that "a nation has a right to every thing that can help to ward off imminent dangers, and keep at a distance whatever is capable of causing its ruin, and that from the very same reasons that establish its rights to the things necessary for its preservation." He also lays down the rule, that the same rules of war apply to civil as to foreign wars.

It is not controverted but that the commander of an army may exercise, in proper cases, the power in question, over both property and person, within the territory and its vicinity under the control of the army, although martial law has not been declared, nor the civil law entirely suspended. What is it, then, but a partial exercise of martial law? And what gives the right but a military necessity, or emergency? And from what source does the power come, if not from the President, as commander-in-chief? Now, what good reason can there be for confining the power to and within the lines of the army, provided a like urgent necessity and emergency arises or exists at any other point outside of the lines of the army, and within the territory of the government or nation? What is the theatre of the present war in this country? Is it only that portion of the country included within the lines of the armies, which extend from the Chesapeake Bay to the spurs of the Rocky Mountains? or is it not rather the whole nation, the loyal States upon the one side, and the disloyal upon the other? and are not all within the vicinity of the lines of the armies, as far as that vicinity is to be considered as affecting the exercise of the authority in dispute? The right to impress private property, either for the use of the government, or to prevent it from falling into the hands of the enemy, arising from urgent