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THE



HABEAS CORPUS,



MARTIAL LAW



By ROBERT L. BRECK



Prepared for the Danville Quarterly Review for December, 1861.



CINCINNATI:

RICHARD H. COLLINS, PRINTER.
25 Wi<i Fourth Street.

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THE



HABEAS CORPUS,



MARTIAL LAW



By ROBERT L. BRECK.



Prepared for the Danville Quarterly Review for December, 1861.



CINCINNATI:

RICHARD H. COLLINS, PRINTER,

25 West Fourth Street.

1862.






LL.
WUeMc



^



PREFACE



The Correspondence herewith given will explain, in large part, this publi-
cation.

To complete the explanation it is necessary to add: that the writer having
received no reply to the request made toward the conclusion of his first
letter; and the December No. of the Review having been issued with his name
continued upon the cover as one of the conductors of the work, notwithstand-
ing his expressed desire that his connection with it should be regarded as
previously terminated; has seen no course left him but to disavow the connec-
tion in some other way. And further, that, of different methods of doing this,
the one both least offensive to his brethren from whom he has differed and
demanded injustice to himself, has appeared to him, to be, to lay the correspon-
dence, together with the obnoxious Article, before the readers of the Review.
If he shall also, hereby, direct the attention of any who have not heretofore in-
vestigated them, to the vital questions discussed in the Article, he will have
another reason for satisfaction in the choice of this particular method.

He appears in this form before the public with regret and diffidence. First,
because it is repugnant to his feelings to be brought into open difference with
brethren, among whom are those whom from his youth he has regarded with
admiration and affection, and whose friendship has been to him a prized and
hereditai'y possession. Secondly, because the Article, being a non-professional
discussion of great legal and Constitutional questions, and having been pre-
pared in a way which the latitude and freedom of a Review allow, is not
such as he would have volunteered before the public as an independent pub-
lication. He does not profess to have done much more than to bring together
the leading views and main arguments of several papers; all of which are not
likely to fall into the hands of any large number of the readers of a Review
such as he was writing for. He would repudiate any design, in what he has
done, to embarrass the Government in any of its legitimate ends and meas-
ures; and would express his earnest protest against the intolerance which
seeks to fix this stigma upon any who venture to express their opposition to
what they believe to be illegal acts and courses of our national administra-
tion — especially when these are held by them to be inimical to personal lib-
erty and republican institutions. Freedom of discussion will not cripple or
seriously embarrass any government or administration that is worthy of the
confidence of the people.



4 PREFACE.

Such is the excitement of the times and the effect of the intolerance alluded
to, in closing the ear of a large portion of the public to every one upon -whom
a suspicion of unfriendliness to the Government may be, justly or unjustly,
fastened, he deems it proper here to say this much of himself: That he pro-
fesses and purposes to be a loyal citizen: that he knows no State government
which has any claim upon his allegiance, but that at Frankfort; that he
knows no national government that can properly claim his allegiance, but that
at Washington: that of each of these he claims that it is his government; and
that he will sustain them both to the extent of his ability and influence, in
all measures which he believes to be just and Constitutional; that yet he does
not consider it either incumbent on him, or patriotic, to approve, indiscrimi-
nately or without question, all the things that may be done by them. Of the
wretched strife now pi-evailing in our country — as to its origin or merits or
settlement — he has said nothing in these pages — and, therefore, can have
said nothing discordant with the utterances which had been made upon these
subjects in the Review. In his humble measure, and at the only time and in
the only way he believes it could have been secured, he has labored for the
preservation of the Union. Since the sword has been made the arbiter, he has
felt that he can only stand in his lot and await the issue.

The Article which is now given to the readers of the Review, was, the large
part of it, written and in the hands of the printer of the Association, and a
portion of it in type, when the printing of it was arrested. The preparation
of the manuscript, then discontinued, has, since the purpose of publication
in this form, been completed after notes which had been preserved.

It only remains here to give the Third of the "Articles of Association," which
were designed to state the chief heads of agreement amongst the persons who
associated themselves for the purpose of establishing and controlling the
Danville Review:

"Every member shall publish, of his own composition, whatever he pleases;
without submitting it to the judgment of any one. All articles shall oi'dina-
rily be published in the order in which they are received by the printer: but
articles of Members shall have preference of those written by persons not
members; and no article of the latter sort shall be received by the printer,
except through a member; and no member shall have credit on his 50 pages,
for articles thus passing through his hands. No direct controversy between the
Members, or between articles however furnished, shall be allowed in the pages
of the Review."



CORRESPONDENCE.



Danville, Ky., Oct. 29, 1861.
REV. R. L. BRECK, Maysville, Ky.:
Dear Brother :

At a meeting of the Review Association, held at
Danville on the 23d inst., for the purpose of considering the financial condi-
tion of our Magazine, and the material for the December Number, I, (as pro
tern. Editor,) laid before the members present a letter from our Publisher, Mr.
Collins, touching the above named interests. In this letter Mr. C, in enu-
merating the Articles on hand, or promised, mentioned that you were prepar-
ing one with the following caption: "Martial Law and the Writ of Habeas
Corpus;" in which you propose to review two pamphlets by Judge Nicholas,
and the decisions of Justices Treat and Taney. The members of the Associa-
tion thinking a position taken upon this subject of vital importance to our
interests, and fearing your conclusions might be adverse to the action of the
General Government, directed me to request Mr. Collins to inform us as to the
bearing of your article. To this request he replied that he was unable to tell.
At another meeting, held Oct. 28th, the following resolution was adopted, nem.
con., and I was directed to communicate it to you:

"We are not willing to commit our Review to an authoritative declaration on
the vexed law question, of the Right to suspend the Writ of Habeas Corpus :
more especially, if the declaration be adverse to the action of the Executive ;
and would exceedingly regret if anything should now be published in the
pages of our work, which might appear unfriendly to the action of the Gen-
eral Government. We, therefore, earnestly hope and request, (while acknowl-
edging your rights, according to the terms of our original Articles of Associ-
tion,) that if the sentiments of your Article are in any way hostile to, or of
such a character as to embarrass, the action of the Government in our present
political distress, you will withhold it: at least until such time as its publica-
tion will be looked upon only as affecting the discussion of an abstract prin-
ciple."

It is proper to add that there were present at this meeting the following
members: Drs. Breckinridge, Humphrey, Landis, Smith, Yerkes, and myself.
At the previous meeting, Professor Matthews was present, and Dr. Humphrey
was absent.



6 CORRESPONDENCE.

We may be entirely mistaken as to our fears in regard to the position you
will take in your Article ; and, therefore, all our anxiety may he unnecessary,
as well as seem ungenerous to you. But, feeling as we do that an utterance
in our pages against the Government, would he not only discordant with its
previous deliverances, hut certain death to its present prospects ; we feel sure
that, writing as we do in the spirit of brotherly kindness, you cannot be of-
fended at our request.

I hope to hear from you soon.

In conclusion I remain,

Your brother in Christ,

JACOB COOPER.



Maysville, Monday, Nov. 4, 1861.
REV. JACOB COOPER:

My dear Brother :

Having been absent a few days from this place,
I found this morning at the Post Office your communication of the 29th Oct.
It occasioned some surprise, but no other feeling. I was ignorant of the views
of the other brethren of the Association, upon the questions discussed in my
Article; but had rather supposed they would agree in general with my own —
at least had no reason to suppose they would be materially different. In a
personal interview with Mr. Collins, however, after his return from Danville
and after the suggestion of a possible discrepancy, I authorized him to make
known to any of the brethren who might desire to know, the general drift of
the article. I am not able to see that the grounds I have taken are discordant
with any "previous deliverances" in the Review, as I regard the questions I
have discussed perfectly separable and separate from others previously dis-
cussed, touching the state of the country. And I do not see how any " author-
itative declaration " can be made, in a work in which we are required to publish
over some permanent signature, and charged with an individual responsi-
bility by written agreement. *

As to the article proving " certain death to the present prospects" of the Re-
view, allow me to say — that I had supposed the object of the work was to
form and lead public sentiment, and not to follow it — to seek after truth in
free discussion, and not success by conformity to popular opinion; and further —
that there seems to me a reasonable ground for difference of opinion, as to
whether the mind of the reading public is such as that an expression of such
views as I have put into the Article, would destroy or cripple the work.

I have written this much, however, not in the way of a plea for the Article —
that I have instructed Mr. Collins to withhold — but because it seemed neces-



* The writer was under the impression that the obligation to use a signature
or initial, or other uniform designation, was in the Articles of Association.
Upon examination he finds that it was in a resolution adopted by the Associa-
tion, since the organization. It is also stated in the Explanatory Note in the
first number of the Review.



CORRESPONDENCE. 7

sary in justice to myself. I have regarded myself from the beginning as but
little more than a nominal member of the Association, and consented to be-
come connected, and have remained connected with it, not because I had any
views to publish, but from my friendliness to the enterprise ; and not because I
thought I could be of service to it, but because, at the time it was begun, others
thought I could be. I am sensible that I am of but little consequence to the
Association, and have rendered but little service to it.

There have been some things in tbe Review from which I differed widely,
and things, too, which I thought would greatly impair its popularity ; but I
have not believed that I had the right, and have not had the disposition to
challenge them.

Under all the circumstances, the action of so many of the brethren — and
in the form in which it has been taken — is as binding on me as any written
agreement, to the same effect, could be. The article, therefore, has been
promptly withdrawn.

I see, and have seen from the beginning, the difficulty of conducting a work
upon the nominal plan of the Review. In spite of articles of agreement
guaranteeing the freedom of discussion, there must be some restraint; and I
am satisfied it would be better for one or two persons to assume the entire
responsibility. As to myself, it seems plain to me that I ought to withdraw
from the Association; and, accordingly, request that my connection with it
may be regarded as now terminated. This is done in perfect kindness to the
members, all of whom I have reason to regard as friends and Christian brethren;
and some of whom, whom I know better, I admire, and am warmly attached to.

I would like, also, to be allowed to withdraw in a way that will put me right
before my friends. For whilst the circle is small in which the matter will re-
ceive any attention, yet I desire as much as brethren whose influence and repu-
tation are wider, that my record, in relation to the tremendous events that are
passing, shall correctly represent me to any who now have interest enough in
me to observe my course, and to my children in after years. I do not wish, by
an abrupt and unexplained termination of my connection with the Review, to
leave room for incorrect and injurious inferences. I would like to be allowed a
statement, of a dozen lines on the cover — and which shall be made perfectly
acceptable to the brethren — of the simple fact in relation to the matter!
which will leave me under no necessity ever after to make an explanation.

I desire to assure yourself, and, through you, the brethren in Danville, of
my kind and fraternal regard. Truly yours,

ROBT. L. BRECK.



Danville, Ky., Nov. 8, 1861.
REV. R. L. BRECK:

Dear Brother :

Your letter of Nov. 4th, has been laid before the
Association, and I am directed by the members present to say to you, that they
are much pained at your determination to withdraw from us ; and to express
their earnest desire that you will reconsider it.



8 CORRESPONDENCE.

We remain in ignorance of the drift and intention of your Article ; and are,
therefore, unable to do more than to disclaim all purpose of any interference
beyond making a fraternal request prompted by the reasons we gave you, and
■warranted, as we supposed, by the relations of all kinds existing between us.

You state in your letter that you had directed Mr. Collins to withdraw your
Article. He informs us that by your direction he stops the printing of it till
further orders. We, of course, are not either authorized or inclined to give
him any orders on the subject, and recognize your perfect right to do as you
think best on mature reflection.
By order of Association.

With the kindest regards, I remain most sincerely,

Your friend and brother,

JACOB COOPER.



Maysville, Wednesday, Nov. 13, 1861.
REV. JACOB COOPER:

My dear Brother :

Yours of the 8th inst. was received last night.
I do not see any reason for altering the decision I communicated to you.
Mr. Collins, probably, has written to you before this, that he was directed, a
few hours after the notice to suspend, wholly to withdraw the article.

Very truly yours,

ROB'T. L. BRECK.



THE HABEAS CORPUS AND MARTIAL LAW,



Martial Law. By S. S. Nicholas. Part of a Pamphlet first
published in 1842, over the signature of " A Kentuckian."
Bradley & Gilbert, Printers, Louisville.

A Review of the Argument of President Lincoln and Attorney -
General Bates, in favor of Presidential Power to suspend the
privilege of the Writ of Habeas Corpus. By S. S. Nicho-
las, of Louisville, Ky. Bradley & Gilbert, Printers.

Decision in the United States District Court, Missouri, in the
Matter of Emmet McDonald. The Opinion of the Court
delivered by Justice Treat. American Law Register, vol.
9, pp. 661-695.

Decision in the United States Circuit Court, Chambers, Balti-
more, Maryland. Before Taney, Chief Justice. Ex Parte
John Merryman. The Opinion of the Court delivered by
the Chief Justice. American Law Register, vol. 9, pp.
524-538.

The American people are engaged in a great struggle, in
the progress of which they begin to be, for the first time,
thrown upon the serious discussion of the most fundamental
and vital principles of enlightened and constitutional liberty.
It is an evidence of their past happy exemption from tem-
pests such as have rocked other great nations, that these
very elementary principles, these rudiments of liberty, are so
little known and so feebly apprehended by them. They
have lived in the almost unparalleled enjoyment of liberty,



10 THE HABEAS CORPUS AND MARTIAL LAW.

but have realized no occasion to study it, and have not
analyzed or denned it. They have sailed upon a smooth
sea, without the experience of a single storm to awaken
serious apprehensions for their safety, and have never exam-
ined the vessel that has borne them, to understand the great
timbers and braces that hold it together. Yet this which is
the evidence of the serenity of their past enjoyment, is one
of the features of peril for the future, in that they may
unconsciously part with the rights they have but poorly
studied and little understand, and may be able to regain
them, if ever recovered, only at the expense of great suffer-
ing, and treasure, and blood. The struggle for the preserva-
tion of the Union of our States, in the manner in which it
has been conducted on the part of the Government, is
awaking many of the more thoughful of the nation to the
serious consideration of the great underlying principles of our
liberty, and is inaugurating another conflict — a conflict for
constitutional liberty against the encroachments of arbitrary
power — the issue of which is not less uncertain, and is even
more momentous to us as a people, and to the world, than
the issue of the other. Valuable as is the Union, it is yet
not above estimation. There are inalienable rights the loss
of which would be poorly compensated by its preservation —
without which it would not be worth preserving. It may
be that the fearful struggle for the integrity of the nation —
if it must go on — does not necessarily involve the sacrifice
of those rights, if the people will but gird themselves for
the other conflict which their preservation demands. But
the time has come when they must array themselves in their
majesty, and offer a firm and prompt resistance to the
invasion.

The papers before us embody the issues which are now
being thrust upon the nation by the new and startling claims
of executive prerogative, and the actual exercise of powers
before unprecedented in our history. Judge Nicholas, the
author of the first two, is widely known in Kentucky as one
of the ablest jurists and one of the most patriotic and loyal



THE HABEAS CORPUS AND MARTIAL LAW. 11

citizens in the Commonwealth. The first of his pamphlets,
the greater part of it, was written nearly twenty years since,
having been occasioned by a speech of Mr. Adams in the
House, and the discussion in the Senate of the United States
Congress, upon the refunding to General Jackson the amount
of the fine inflicted upon him by Judge Hall, for refusing to
obey the writ of habeas corpus, and violence to the Court,
under the martial law proclaimed by him in New Orleans.
In the speech of Mr. Adams and the remarks of lead-
ing Senators, doctrines were advanced which were justly
regarded as striking at the roots of our liberty, of which the
present monstrous usurpation of power by the Executive and
Military departments of the Government, are the full and
complete development. A portion of the pamphlet then
published without the name of the author, possessing a sin-
gular fitness to the present time, was republished with an
Appendix in June last.

The other pamphlet of Judge Nicholas is, of course, a
recent publication. We give his introductory definition of
his political status — deemed necessary by him probably on
account of the severity of his strictures — that we may, so far
as our influence can reach, clear the way for the circulation
of the pamphlet, by showing that the trumpet note of warn-
ing comes from no disloyal quarter:

"It may be necessary with those to whom the writer is not per-
sonally known, to premise, that he claims to be a thorough and
devoted Unionist. He has manifested his right to make that claim
by having, during the last five years, written and published more,
probably, than any other man to arouse the nation to a perception
of the proximate danger to the Union from the treasonable machi-
nations of secessionists and abolitionists. For all that time he has
been constantly predicting the present state of national affairs. He
has assiduously assaulted the secession heresy with argument and
denunciation. He has done what he could to portray the inestim-
able value of the Union, and the endless, numberless evils of its
dissolution. Could there be such a thing as a dictatorship, he
should deem its powers rightfully employed in decimating leading



12 THE HABEAS CORPUS AND MARTIAL LAW.

secessionists and abolitionists, in decimating the members of seces-
sion conventions, and especially in decimating tbe secession mem-
bers of the Virginia Convention, the Tennessee and Missouri
Legislatures, who so signally betrayed popular trust.

" He believes the present civil war will be long protracted ; that
we are marching with rapid strides to that military despotism pre-
dicted for us by the fathers of the Kepublic ; that the preservation
of the Constitution with those principles of civil liberty which it
consecrates and secures, is the very highest obligation of patriotism,
far above the mere preservation of the Union ; that the entire
destruction of the Constitution and civil liberty is a price the nation
cannot afford to pay for preserving the Union, even if it were not
absurd to suppose that the preservation of the one requires the
destruction of the other ; that it is a gross calumny on the structure
of our government, to charge that it is too weak to put down the
present rebellion ; and that if it can not be put down with an army
of five hundred thousand men, and a large navy, without trampling
Qn the Constitution, it will be because of the incompetency of the
President and his Cabinet, and not from any fault in the structure
of the government. With these views, the writer means persever-
ingly to use his very humble efforts to stay the march to despotism,
and earnestly entreats the co-operation of the thousands of far abler
and younger men scattered through the country. The opinions, as
to principles now to be vindicated, were all matured and published
near twenty years age."

The decision in the United States District Court, Mis-
souri, is an utterance honorable to the ability and the fidelity
of that high tribunal. The case was one of very general
interest throughout the country. It is not necessary to
narrate all the facts and circumstances connected with it.
Emmet McDonald, a citizen of Missouri, being a prisoner in
the United States Arsenal in St. Louis, petitioned the court
for a writ of habeas corpus, alleging that he was held in
unlawful confinement; that he was so held under no law or
authority, civil or military, of the State, but under or by
color of the authority of the United States ; that yet his
confinement was by no order of, nor by any process issuing
from any tribunal of the United States. The writ having



THE HABEAS CORPUS AND MARTIAL LAW. 13

been issued, on a demurrer to the return, and a submission,
by the counsel for the respondent, of the question of juris-
diction, the decision of the court was rendered. It decides
that the Federal courts have exclusive jurisdiction to issue
the writ of habeas corpus whenever the applicant is illegally
restrained of his liberty under or by color of the authority
of the United States, and that any Federal judge may issue
the writ when the applicant is so restrained, though without
any formal or technical commitment ; reviews the acts of
Congress — the " Judiciary Act " of 1789 and the " Force
Bill " of 1833 — and the decisions of the United States
Courts, by which the question of jurisdiction is to be deter-
mined; gives the history of the habeas corpus under these
Acts of Congress, drawn from the adjudicated cases, which
are cited and commented on ; and concludes by pronouncing
the court's jurisdiction in the case " clear, positive and
ample."

The opinion of Chief Justice Taney at Chambers in Bal-
timore, is pronounced by the profession " a high, finished
specimen of luminous, convincing judicial disquisition" —


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Online LibraryRobert L BreckThe habeas corpus, and martial law → online text (page 1 of 4)