The Chief Justice then examines the case of Martin v. Mott (supra), and says: "The grounds upon which that opinion is maintained are set forth in the report, and, we think, are conclusive. The same principle applies to the case now before the court. Undoubtedly, if the President, in exercising this power, shall fall into error, or invade the rights of the people of the state, it would be in the power of Congress to apply the proper remedy, but the court must administer the law as they find it. The remaining question is, whether the defendant, acting under military orders issued under the authority of the government, was justified in breaking and entering the plaintiff's house." And, after examining matters as then existing in Rhode Island, he says: "It was a state of war, and the established government resorted to the rights and usages of war, to maintain itself, and to overcome the unlawful opposition. And, in that state of things, the officers engaged in its military service might lawfully arrest any one, who, from the information before them, they had reasonable grounds to believe was engaged in the insurrection; and might order a house to be forcibly entered and searched, when there was reasonable ground for supposing he might be there concealed. Without the power to do this, martial law and the military array of the government would be mere parade, and rather encourage attack than repel it."

The principle established by these cases determines, I think, that the President has the power, in the present military exigencies of the country, to proclaim martial law, and, as a necessary consequence thereof, the suspension of the writ of habeas corpus in the case of military arrests. It must be evident to all, that martial law and the privilege of that writ are incompatible with each other.

But it may be argued that Vermont is a loyal state, more than five hundred miles from the seat of war; that the people are patriotic and law abiding; that the enforcement of civil law has not been interfered with within her borders; and that, therefore, there is nothing to justify martial law. But we have already seen that this is a question for the President, not for the court, to determine.

I am aware that the conclusion at which I have arrived may seem to conflict with some very high authorities, but it appears to me that they can be reconciled. In Ex parte Bollman, 4 Cranc. (8 U.S.) 95, Chief Justice Marshall incidentally remarks, that only Congress can suspend the writ of habeas corpus. And Judge Story, in his Commentaries on the Constitution (volume 3, §1336), makes the same remark. But neither was discussing the question, where, how, or by whom it could be suspended. It seems to have been an obiter dictum with both of those learned judges. The question came directly before Chief Justice Taney, in Ex parte Merryman (Case No. 9, 487), and again before Judge Hall, of the Northern District of New York, in Ex parte Benedict, before referred to. Both cases came up on an entirely different state of facts from that which now exists. The President had not then proclaimed martial law, and, in neither of the cases, was the act of 1795 referred to at all by the court, in its opinion. On the other hand, the President's legal adviser (the attorney general), Mr. Horace Binney, of Philadelphia, Mr. Reverdy Johnson, of Maryland, and Judge Parker, of Cambridge, Massachusetts, have, I understand, given deliberate opinions, that the privilege of the writ may be legally suspended without an act of Congress. I have not had an opportunity of seeing the last named three opinions, and therefore do not know on what grounds they are based;

but, coming from eminent lawyers and pure patriots, they are certainly entitled to great weight.

What, then, should be the order in this case? The writ of habeas corpus being now suspended, as to persons arrested as the petitioner was, if he were at this time before me, I should be constrained to order him back into the custody of the marshal. But, on the 1st of September, when the marshal was directed to bring him before me, he was legally entitled to the privilege of the writ; and, for disobeying that order, I shall direct the following sentence to be placed upon the records of the court, and shall use all the power the law confers upon me, to have it enforced.

"District of Vermont. In the Circuit Court, October 7th, 1862. In the matter, Ex parte Anson Field (Case No. 4, 761). On the order on C. C. P. Baldwin, marshal, and N. B. Flanagan, jailer, to show cause why they should not be punished for contempt of court, in refusing to bring said Field into court in pursuance of the order of September 1st last, the court, having fully and carefully examined the matter in all its relations, and given it mature consideration, adjudges that said Baldwin was guilty of contempt of court in disobeying the order aforesaid, and that, within ten days, he pay to the clerk of the court a fine of one hundred dollars, and that, until he purge himself of said contempt, by complying with this order, he be not permitted within the court, to act as one of its officers; and that, the said Flanagan having acted as the mere servant of the said Baldwin, he be discharged, as a vindication of the power of the law does not require that he should be punished."

The marshal having, in accordance with the order of October 7th, paid into the court the fine of $100, was restored by the court to his full privilege as an officer of the court.

.N RE NICHOLAS KEMP

16 Wisconsin (Vilas and Bryant) 382
16 Wisconsin 360

Supreme Court of Wisconsin, 1863

HABEAS CORPUS. On the 4th day of December, 1862, a writ of habeas corpus was issued out of this court and directed to General W. L. Elliott, commanding the Department of the Northwest, requiring him to have the body of Nicholas Kemp, with the time and cause of his imprisonment, before the court on the 16th day of December, 1862, to do and receive, etc. This writ was issued on the petition of John Deidrich, on behalf of said Nicholas Kemp, alleging, among other things, his imprisonment at Camp Randall, in said state, by Brigadier General W. L. Elliott, and that the cause of the arrest and imprisonment of Kemp was for being present at a riot which was said to have occurred at Port Washington, in the county of Ozaukee, on the 10th day of November, 1862, and that this imprisonment was illegal for the reason that he was not committed or detained upon the final judgment or order of any competent tribunal of civil or criminal jurisdiction, nor by virtue of any execution issued upon such judgment or order, nor upon any affidavit or written complaint against him for any offense against the laws of the state or of the United States, and that he had been wrongfully removed from the county in which said offense was alleged to have been committed, by an armed force to the city of Milwaukee and from thence to the city of Madison, where he was imprisoned as aforesaid.

The writ having been served, the respondent, Gen. Elliott, sent to the clerk of the court, as a return thereto, the following communication, but did not produce the body of the said Kemp before the court as commanded by the writ: "Headquarters Department of the Northwest, Madison, Wisconsin, December 16, 1862. To the Honorable Supreme Court, State of Wisconsin, Madison. In answer to writs in cases of Nicholas Kemp, arrested Nov. 12, 1862; Joseph Hine, arrested Nov. 15, 1862; Anthony Ablehausen (Ablheisen), arrested Nov. 15, 1862, served upon me on the 5th inst., I have the honor to state that Anthony Ablehausen was released on parole, Dec. 12, 1862, and that I hold the others above named in custody by order of the President of the United States, they having been arrested at Port Washington, Ozaukee county, Wisconsin, by the special provost marshal for the state of Wisconsin. The authority for the said arrests, with the offense charged, is set forth in the enclosed papers marked "A" and "B". The President of the United States having on the 24th day of September, 1862, as announced in General Orders No. 141, War Department, Adjutant General's office, Washington, September 23, 1862 (copy of order herewith enclosed, marked "C"), suspended the writ of habeas corpus for offenses as charged against the aforesaid persons, with due respect to the Supreme Court, I decline releasing them from military custody. I am, very respectfully, your obedient servant, W. L. Elliott, Brig. Gen. U. S. Vols., Comd'g Dept."

"A." "State of Wisconsin, Executive Department, Madison, November 11, 1862. Walter D. McIndoe, Esq., Special Provost Marshal for State of Wisconsin, Madison. Sir: Information having reached this office of a violent interference with the draft of the militia at Port Washington, in the county of