suppression of disloyal practices: First-By direction of the President of the United States it is hereby ordered that until further order, no citizen liable to be drafted into the militia shall be allowed to go to a foreign country, and all marshals, deputy marshals and military officers of the United States are directed, and all police authorities, especially at the ports of the United States on the seaboard and on the frontier, are requested to see that this order is carried faithfully into effect. And they are hereby authorized and directed to arrest and detain any person or persons about to depart from the United States, in violation of this order, and report to L. C. Turner, Judge-advocate, at Washington City, for further instructions respecting the person or persons so arrested or detained. Second-Any person liable to draft who shall absent himself from his county or state before such draft is made will be arrested by any provost marshal, or other United States or state officer, wherever he may be found within the jurisdiction of the United States, and conveyed to the nearest military post or depot and placed on military duty for the term of the draft; and the expenses of his own arrest and conveyance to such post or depot, and also the sum of $5 as a reward to the officer who shall make such arrest, shall be deducted from his pay. Third-The writ of habeas corpus is hereby suspended in respect to all prisoners so arrested and detained, and in respect to all persons arrested for disloyal practices. (Signed) EDWIN M. STANTON, Secretary of War."

The two orders of the War Department, bearing the same date, may properly be considered together, and as relating to the same general subject. Whether issued separately or together, whether, if the one referred to by the deputy marshal was first issued or not, it may not be very material to inquire; but as

that declares that "all United States marshals, and superintendents, and chiefs of police of any town, city or district, be and they are hereby authorized and directed to arrest and imprison any person or persons who may be engaged by act, speech or writing in discouraging volunteer enlistments, or in any way giving aid and comfort to the enemy, or in any other disloyal practices against the United States," and the other order assumes to suspend the writ of habeas corpus in respect not only to all persons arrested and detained by virtue thereof, but also "in respect to all persons arrested for disloyal practices," (a term not otherwise contained in the order); it may be presumed that the order referred to by the deputy marshal was first issued, and that the other order was intended to suspend the writ of habeas corpus, in respect to persons arrested under that order, or under the order referred to by the deputy marshal. If the order declaring the writ of habeas corpus suspended can be considered as legal and valid, it is necessary to consider its scope and effect, and, as both questions are therefore properly before me, I shall consider both in their order. It is to be observed that the first order cited confines the power of arrest to United States marshals and superintendents and chiefs of police, while the second order, in respect to the cases within it, extends the power to all deputy marshals and all military officers of the United States, and to all police authorities. These officers, many thousands in number, and of every grade of intelligence, are scattered over every portion of our country. To all of these, arbitrary powers of arrest, without warrant and without any prior legal inquiry, and without the slightest preliminary proof of guilt, are assumed to be given. Was it intended, then, that every policeman and every military officer throughout the loyal states and in lo

calities far removed from the seat of military operations, should be authorized to arrest and imprison any citizen, and that, if on taking the party into custody, or afterwards, such officer should declare that he made the arrest by virtue of the orders of the War Department of August 8, 1862, or for disloyal practices, he could keep him in prison, or in his own custody, or compel him to enter the military service, and also require all judiciary officers, when the prisoners or his friends applied for a writ of habeas corpus, that the facts of the case might be judicially ascertained and the question of the legality of his arrest and detention considered, to say, "The privilege of the writ of habeas corpus is suspended and you can have no relief"? Is every man supposed to be the subject of militia duty who has left or shall leave this county since the 8th of August last, and prior to the unknown day in the future when a draft is to be made, no matter under what circumstances, to be punished by being forced into the military service for nine months without any hearing, without any opportunity to show that he is exempt from militia duty, when the constitution provides that "no person shall be deprived of life, liberty or property, without due process of law?" I am aware that these restraints upon travel have been removed, but was that the original intention of the order?

My personal confidence in the integrity, patriotism, and good sense of the President, as well as the respect due to the high office he holds, compels me to require the most conclusive evidence upon the point before adopting the conclusion that he has ever deliberately sanctioned so palpable a violation of the constitutional rights of the citizens of the loyal states as the order of the War Department thus construed, would justify and require. Here, and throughout most of the loyal states, we are far removed from

the several fields of military operation. All the arts and occupations of peace can be and are pursued with entire security, and all the laws of the state and the Union can be administered by the ordinary courts of justice, as freely, as fully, as efficiently, as in time of profound peace. The execution of the laws of the land has not been resisted by our people. On the contrary, they have responded to the calls of the general government with unexampled unanimity and alacrity, and have offered their blood and their treasure without stint to maintain the authority of constitutional government. They have waited for no conscription, but have sent hundreds of thousands of volunteers into the field to meet, without complaint, all the exposures, all the vicissitudes, and all the dangers of the camp and of the battlefield. Without waiting for the tax-gatherer, they have voluntarily and freely contributed untold millions to hasten the departure of these volunteers and strengthen the arm of the government established under the constitution of the Union. Is it possible that such orders as those above copied were intended to operate upon such a people, in the loyal states, and place their liberty at the mercy of every military officer, every officer of police, every policeman, and then to suspend the writ of habeas corpus in such a manner as to prevent a judicial inquiry into the question whether the facts of the case would justify and arrest, even under such orders? Can a man, not liable to do military duty, be arrested under such order, and be detained by force in the military service, without the privilege of showing his exemption and procuring his discharge from such illegal restraint? Could it have been intended that military officers of every grade, and policemen of every class, throughout the loyal states, acting upon their own suspicions, or upon any representation which political prejudice, personal malignity, or other

motives might suggest, or in the mere wantoness of unusual and arbitrary power, should be authorized to arrest and imprison any citizen, without the possibility of a judicial investigation? Is every official to whom these orders are addressed to determine for himself what shall constitute disloyal practices-a term not known to the law, which has no fixed or reasonably certain definition, and which every arresting officer is left to interpret as his prejudices, his passions, or his interest may incline? And is such interpretation to be subject to no revision, except by a judge-advocate at the seat of the government, acting upon extra judicial, if not entirely ex parte testimony, in the absence of the accused? Such a construction of the order would place the liberty of every citizen at the mercy of these officials, one of whom might conclude that to speak disparagingly of the military ability and military conduct of General McClellan was a disloyal practice, and tended to discourage volunteer enlistments; while another might consider the abuse of McClellan a virtue, and hold the expression of a doubt of the superlative ability of Fremont as a disloyal practice of the deepest dye; and yet another might suppose that any person who should read aloud the newspaper accounts of the retreat of Gen. Pope's army from the Rapidan to the Potomac, and express a doubt as to the competency of that general, was discouraging enlistments and giving aid and comfort to the enemy. I confess, nevertheless, that there is some reason for assuming that the fair construction of the language of the order of the War Department, if it could properly be considered without reference to the provisions of the constitution of the United States, would lead us to conclude that the privilege of the writ of habeas corpus was intended to be suspended in all the cases supposed, and I understand such a construction has been sometimes insisted upon;