Puslapio vaizdai

has arisen. We have nothing to do with the validity of the law as a defence to the action. It is sufficient for the State court that the defence involves the construction and effect of a law of Congress. The case has then arisen when the courts of the United States may have jurisdiction, if Congress so directs. If the law does not afford a constitutional or valid defence, it cannot now be doubted that the learned justices of the United States Courts will so declare it, when the jurisdiction of such cases will remain in the State courts, as before the enactment of the law. It is not our duty to assert the independence of our State sovereignty and jurisdiction; for the final construction and effects of all acts of Congress may be brought before the United States Courts by the express provision of the Constitution.

The manner of taking the cause to those courts is of consequence. The Supreme Court of the Union must be relied on to prevent its jurisdiction from being unlawfully extended by Congress. I am of the opinion, therefore, that Congress has the power to direct the transfer of such cases. In my opinion this application was necessary in order to vest the U. S. Circuit Court with the possession of the action, but the discussion has not been lost, inasmuch as it will be now settled that this Court will not, in this judicial district, take further cognizance of cases which have been transferred under this act of Congress. It is very proper that an order be entered transferring the cause to the U. S. Circuit, as it affords the evidence in the Court of the disposition made of it.

the Judiciary Act; 1 Stat. at Large, 85: Cohen vs. Virginia,
6 Wheaton, 264; Miller vs. Nicholls. 4 Wheaton, 311.)

Cannot Congress give the Circuit Court of the United States original jurisdiction in any case to which this app:1late jurisdiction extends?

In Osborn es. United States Bank, 9 Wheaton, cited by Judge Leonard, Chief Justice Marshall said he could perceive no ground for saying that Congress could not.

In that case one of the questions was whether Congress could constitutionally confer on the Bank the right to sus and be sued "in every Circuit Court of the United States." It was held that such a suit was a case arising under a law of the United States, consequently that it was within the judicial power of the United States, and Congress could confer upon the Circuit Court jurisdiction over it.

See, also, Curtiss's Com. on the Jurisdiction, &c., of the Courts of the United States, sections 12 and 13; the latter section, containing a quotation from another portion (p. 865) of the opinion of Chief Justice Marshall in Osborn vs. the Bank of the United States, apparently quite pertinent to the question in this case.

I concur, then, in the conclusion of Judge Leonard, that Congress had the power to direct the transfer to the Circuit Court of the United States.

In arriving at my conclusions I have consulted Story's Com. on the Constitution, chap. 38, 22903, 906, &c.; 1 Wheat., Martin vs. Hunter; 6 Wheat., Cohen vs. The State of Virginia; 9 Wheat., Osborn es. The Bank of United States.

As a rule of practice I think the Court should not approve any sureties unless the amount of the Lond is equal to the sum in which the defendant in the action has been held to bail, if bail has been required in the State Court. This fact should be made to appear to the satisfaction of the judge to whom the bond is presented for approval.

Probably an order of this Court directing such transfer is not absolutely necessary, but to make one would be in accordance with usage in like cases; and besides, such an order would be the best evidence of the determination of this Court, that it no longer had jurisdiction of this action. It appearing that the defendant has complied with the requirements of the act for such transfer, the order appealed from should be reversed, and an order made by this Court for the removal of the action and all proceedings therein to the Circuit Court of the United States.

Dissenting Opinion.

CLERKE, J.-I see nothing whatever in the arguments of my brethren, or in those of other judges on the same subject, to induce me to recede from the position which I have attempted to maintain at Special Term. They have all alike, in my very humble judgment, unaccountably overlooked the only point claiming consideration on this great constitutional subject.

The decision in this case will also embrace the case of Gudeman vs. Wool, argued at the same general term as the present case.

The order appealed from should be reversed, and the motion below should be granted without costs.

SUTHERLAND, J.-The question is not as to the constitutionality of the fourth section of the act declaring that the order or authority of the President, during the rebellion, shall be a defence in all Courts, to any order for any arrest, imprisonment, or act done, or omitted to be done, under or by color of the President's order, or of any law of Congress; but the question is as to the constitutionality of the fifth section of the act, authorizing the defendant in any such action, to remove the same from the State Court to the Circuit of the United States for the district where the suit is brought for trial, on complying with certain requirements specified in the section; that is, ou entering his appearance, filing his petition stating the facts, offering good and sufficient surety, &c.

According to the doctrine upheld by my brethren, we cau scarcely conceive of any act committed by any officer of the General Governinent, under color of any authority derived from or under the President, which may not constitute a genuine, veritable case arising under the Constitution of the United States, and which, therefore, may not rightly come within the cognizance of their judicial power. It is only necessary to claim that it was committed under color of that authority, and was, therefore, justified by the Constitution, however monstrous and appalling the act may be, to make it, according to this doctrine, a case arising under that Constitution. For, of course, according to the terms of that claim, the claimant appeals through this remarkable statute, to the Constitution for his justification, and, however palpably frivolous such a claim may behowever palpably manifest may be the conviction that the Constitution no more sanctions such an set than it sanctions the burning of the Capitol, the dispersion of Congress, and the shooting, imprisonment or exile of the men of whom it is composed, yet it is claimed to present a question, and, therefore, a case arising under the Great Charter of Constisutional Liberty in America-the perpetrator of the outrage making that a question which is unquestionably no question; and the judicial power of the State is ousted of its legitimate jurisdiction. Thus, this extraordinary statute prescribes not only that the character, but the mere asser tion of the wrong-doer shall determine jurisdiction, sud that the subject-matter, which has been always held, except in cases affecting Embassadors, other diplomatic Ministers and Consuls, as alone the criterion of jurisdiction, shall be excluded from consideration. Surely, if this can be done by Congress, the Government of the United States of America, is not as all men have heretofore supposed, incontestably a Government of limited powers and duties, and is, if not one of unlimited powers and duties, nevertheless, of very accommodating expansibility. This is a novel and strange theory of development in America.

But, it is asserted as the appellate power of the Supreme Court of the United States extends in certain cases to State tribunals, that this case would, after judgment, reach the Federal jurisdiction, and that, therefore, it may as well be transferred to the United States Circuit Court before judgEven if the Supreme Court of the United States ment. would entertain such a case on appeal this is no controlling reason why it should, necessarily, be transferred to the United States Circuit for adjudication in the first instance. For, the only question to be determined by us on this motion, is whether Congress has the power to transfer cases of this description to the Circuit Court of the United States, not whether, ultimately, it may reach the appeilate jurisdiction of the United States Supreme Court.

The question presented by this appeal is not as to the constitutional power of the President to order the arrest, imprisonment, &c, or as to the constitutional power of Congress to authorize the President to order the arrest, imprisoument, &c.; but the question presented by the appeal is as to the constitutional power of Congress to give the Circuit Courts of the United States, primary or original, and (as to the State Courts) exclusive jurisdiction, of the trial of actions for such arrests, imprisonments, &c.

In determining the question as to the constitutionality of the sixth section of the act, we must assume, I think, that the trial of this action will involve the determination of the question as the constitutionality of the fourth section; that Congress, in passing the act, considered that the trials of the actions to be removed to the Circuit Courts of the United States under it would involve the determination of the question as to the constitutionality of the fourth section, whether tried in the State or United States Courts; and that Congress intended by the fifth section to take from the State Courts, and give it to the Circuit Courts of the United States, the right and power to determine that question. Had Congress the constitutional power to do this? That is the question.

If Congress had the power, then the order appealed from denying the defendant's motion to remove the action and all proceedings therein to the Circuit Court of the United States for the Southern District of New York should be reversed, and I think an order made directing such removal. If Congress had not the power, then the order appealed from should be affirmed.

If no steps had been taken for the removal of the action from this Court, and the action should be tried in this Court, and the question as the constitutionality of the fourth section of the act should be decided adversely to the defendant by the Court of Appeals of this State, the Supreme Court of the United States would have final and conclusive appellate jurisdiction of the question. (Const. U. S. Art. 3; sec 25 of


The act of Congress, passed in 1789, "to establish the judicial courts of the United States," no doubt provides that a final judgment or decree in any suit in the highest court of law or equity of a State, where is drawn in question the validity of a statute of the United States, and the decision is against its validity, may be re-examined and revised or affirmed in the Supreme Court of the United States. But, if it is too clear for controversy that the statute is an outrage on the Constitution, if it is palpably usurpation, if it is plain to the most unlettered citizen, that the statute is an attempt to subvert all the securities which the founders of the Government have provided for the preservation of 2. Of conspiracies to overthrow the Government, or conpersonal liberty, and to invest one man with unlimited dic-spiracies to resist the lawful authority of the Confederate tatorial power, and, therefore, that the appeal was palpably frivolous, I presume the court would hear no argument on such an appeal, and would, forthwith, affirm the judgment or dismiss the writ.

Would they, for instance, hearken to an appeal involving the validity of an act of Congress giving the President or any other member of the Government power, by a coup d'etat, to extinguish the legislative branch, as Cromwell did the Long Parliament, and substitute a Barebones Legislature in its place? Surely not; if they, too, were not struck down, and were not (if said debasement can be imagined) by force, by fear, or by corrupt appliances or selfish aspirations, robbed of independence. So that the consideration whether the act is not palpably void must present itself on appeal as it now presents itself to us on this motion; and, if it is palpably void, I repeat it would not be treated on appeal as worthy of being for a moment entertained.

I still consider the defence in this case just as destitute of color as the case which I have imagined. Whether, under the pretext of authority from the President of the United States, any one citizen, at his mere will and pleasure, without any intervention of the judicial tribunals, can incarcerate another citizen cot subject to military law in a loathsome dungeon, for many months, or for a day or an hour, cannot, under any circumstances in which the nation may be placed, be treated as a question constituting a case arising under the Constitution; and any statute which declares the contrary is palpably void. The order at Special Term should be affirmed with costs.

HEADQUARTERS DEPARTMENT OF WASHINGTON, 22D ARMY CORPS, June 20, 1864. GENERAL ORDER No. 51.-First: Hereafter no citizen, commissioned officer, or enlisted man, will be arrested on the report of a detective employed by any officer subject to the jurisdiction of this department, except in extreme cases where there is no doubt of guilt, and immediate action is needed, until the report has first been forwarded for action at these headquarters.

Second: All officers serving in this departmeut employing detectives will send with as little delay as possible a list of those employed to these headquarters, specifying the authority by whom employed; and they are notified that they will be held responsible for improper action or abuse of authority on the part of their employees.

By command of Major General C. C. AUGUR:
Chief of Staff, A. Á. G.

same is hereby suspended; but such suspension shall apply only to the cases of persons arrested or detained by order of the President, Secretary of War, or the general officer commanding the Trans-Mississippi Military Department, by the authority and under the control of the President. It is hereby declared that the purpose of Congress in the passage of this act is to provide more effectually for the public safety by suspending the writ of habeas corpus in the following cases, and no other:

1. Of treason, or treasonable efforts or combinations, to subvert the Government of the Confederate States.

A Bill to suspend the privilege of the writ of habeas corpus in certain cases.


3. Of combining to assist the enemy, or of communicating intelligence to the enemy, or giving him aid and


Whereas, the Constitution of the Confederate States of America provides, in article 1, section 9, paragraph 3, that "the privilege of the writ of habeas corpus shall not be suspended, unless when, in cases of rebellion or invasion, the public safety may require it;" and whereas the power of suspending the privilege of said writ, as recognized in said article 1, is vested solely in the Congress, which is the exclusive judge of the necessity of such suspension; and whereas, in the opinion of the Congress, the public safety requires the suspension of said writ in the existing case of the Invasion of these States by the armies of the United States; and whereas, the President has asked for the suspension of the writ of habeas corpus, and informed Congress of conditions of public danger which render the suspension of the writ a measure proper for the public defence against invasion and insurrection: Now, therefore,

I That during the present invasion of the Confederate States, the privilege of the writ of habeas corpus be and the

4. Of conspiracies, preparations and attempts to incite servile insurrection.

9. Of conspiracies, or attempts to liberate prisoners of war held by the Confederate States.

10. Of conspiracies, or attempts or preparations to aid the enemy.

11. Of persons aiding or inciting others to abandon the Confederate cause, or to resist the Confederate States, or to adhere to the enemy.

12. Of unlawful burning, destroying or injuring, or attempting to burn, destroy or injure any bridge or railroad, or telegraph line of communication, or other property with the intent of aiding the enemy.*


13. Of treasonable designs to impair the military power

The following order has been issued by Gen- of the Government by destroying or attempting to destroy eral Augur:

the vessels or arms, or munitions of war, or arsenals, founderies, workshops, or other property of the Confederate States.

5. Of desertions or encouraging desertions, or harboring deserters, and of attempts to avoid military service: Provided, That in cases of palpable wrong and oppression by any subordinate officer, upon any party who does not legally owe military service, his superior officer shall grant prompt relief to the oppressed party, and the subordinate shall be dismissed from office.

6. Of spies and other emissaries of the enemy. 7. Of holding correspondence or intercourse with the enemy, without necessity, and without the permission of the Confederate States.

8. Of unlawful trading with the enemy and other offences against the laws of the Confederate States, enacted to promote their success in the war.

The remaining sections are unimportant. The act to continue in force 90 days after meeting of next Congress.

EXTENT OF POWER CLAIMED BY THE GOVERNMENT. The instructions of the War Department with respect to proceedings under the law making a limited or quasi suspension of the habeas corpus, remove many grounds of clamor, and propose what may be considered as a very moderate execution of the law. Parties arrested, in the cases specified in the law, will not be denied a trial, but their cases will be investigated by commissioners, who will

"Confederate" Legislation.

[From the Richmond Sentinel, Feb. 17, 1864.]

First. All such as can be identified in having been engaged in bridge burning are to be tried summarily by drumhead court-martial, and, if found guilty, executed on the


The following bill passed both Houses of spot by hanging. It would be well to leave their bodies Congress : hanging in the vicinity of the burnt bridges.

Second. All such as have not been so engaged are to be treated as prisoners of war, and sent with an armed guard to Tuscaloosa, Alabama, there to be kept imprisoned at the depot selected by the Government for prisoners of war.

Whenever you can discover that arms are concentrated by these traitors, you will send or detachments, search for and seize the arms. In no case is one of the men known to have been up in arms against the Government to be released on any pledge or oath of allegiance. The time for such measures is past. They are to be held as prisoners of war, and held in jail till the end of the war. Such as come in voluntarily, take the oath of allegiance, and surrender their arms, are alone to be treated with leniency. Your vigilant execution of these orders is earnestly urged by the Government.

Your obedient servant,

J. P. BENJAMIN, Secretary of War. Col. W. B. WOOD, Knoxville, Tenn. P. S.-Judge Patterson, Col. Pickens, and other ringleaders of the same class, must be sent at once to Tuscaloosa to jail as prisoners of war.

* Respecting this offence, this order was issued in 1861: WAR DEPARTMENT, RICHMOND, November 25, 1861.

SIR: Your report of the 20th instant is received, and I now proceed to give you the desired instructions in relation to the prisoners taken by you among the traitors of East Tennessee.


be appointed for these duties in the different military departments.

Information of all arrests under the law will be given by the department commander as soon as practicable after they are made, and the commissioner will proceed to investigate the same. If, upon examination, a reasonable and probable cause for detention does not appear, he will certify

the fact to the general or other officer in command, who


will immediately discharge the prisoner from arrest. if a reasonable and probable cause does appear, the commissioner will forthwith transmit to the War Department a copy of the evidence taken in the case, with his opinion thereon, for instructions, and meanwhile the prisoner will remain in custody.

In cases where persons not belonging to the military service shall apply to any court or officer in the Confederate States for a writ of habeas corpus, it will be the duty of the officer having the command or of such

with to report the case, with all the relevant facts, to the

War Department, for instructions as to the proper answer to be made to such writ.

Newspaper Exclusion and Suppression.

August 16, 1861-In the United States Circuit Court of New York the grand jury presented the Journal of Commerce, the Daily News, the Freeman's Journal, and the Brooklyn Eagle us aiders and abettors of treason, in terms following:

To the Circuit Court of the United States

for the Southern District of New York: The Grand Inquest of the United States of America for the Southern District of New York beg leave to present the following facts to the Court and ask its advice thereon:

There are certain newspapers within this district which are in the frequent practice of encouraging the rebels now in arms against the Federal Government by expressing sympathy and agreement with them, the duty of acceding to their demands, and dissatisfaction with the employment of force to overcome them. These papers are the New York daily and weekly Journal of Commerce, the daily and weekly News, the daily and weekly Day-Book, the Freeman's Journal, all published in the city of New York, and the daily and weekly Eagle, published in the city of Brooklyn. The first named of these has just published a list of newspapers in the free States opposed to what it calls "the present unholy war"-a war in the defence of our country and its institutions, and our most sacred rights, and carried on solely for the restoration of the authority of the Government.

The Grand Jury are aware that free Governments allow liberty of speech and of the press to their utmost limit, but there is nevertheless a limit. If a person in a fortress or an army were to preach to the soldiers submission to the enemy he would be treated as an offender. Would he be more culpable than the citizen who, in the midst of the most formidable conspiracy and rebellion, tells the conspirators and rebels that they are right, encourages them to persevere in resistance, and condemns the effort of loyal citizens to overcome and punish them as an "unholy war?" If the utterance of such language in the streets or through the press is not a crime, then there is a great defect in our laws, or they were not made for such an emergency.

The conduct of these disloyal presses is of course condemned and abhorred by all loyal men; but the Grand Jury will be glad to learn from the Court that it is also subject to indictment and condign punishment. All which is respectfully presented. CHARLES GOULD, Foreman.

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offices for the West and South, including over one thousand copies for Louisville, and nearly five hundred copies for Baltimore, Washington, Alexandria, and Annapolis. The Marshal also took possession of the office of the Christian Observer in consequence of a late violent article on the “unholy war."

the mails, and in due time, the subject engaged Other newspapers were similarly excluded from the attention of Congress; resolutions of inquiry having been offered in the Senate, January 14, 1863, by Mr. CARLILE, and in the House, December 1, 1862, by Mr. VALLANDIGHAM.

1863, January 20-The Committee on Judiciary of the House of Representatives made a report, which embodied the following letter of

the Postmaster General:

POST OFFICE DEPARTMENT, January 5, 1863. SIR: I have the honor to acknowledge the receipt of the communication signed by you in behalf of the Judiciary Committee, embracing a copy of the resolution of the House of Representatives, in the following words:

"Resolved, That the Committee on the Judiciary be in

structed to inquire and report to the House at an early day by what authority of Constitution and law, if any, the Postmaster General undertakes to decide what newspapers may and what shall not be transmitted through the mails of the United States."

On the first day of the last session of Congress, being the earliest opportunity after the action to which the resolution relates, I submitted to Congress a statement of my action, and of the general reasons and authority for the same, in the following language:

"Various newspapers, having more or less influence within the sphere of their circulation, were represented to be, and were, in fact, devoting their columns to the furtherance of the schemes of our national enemies. These efferta were persistently directed to the advancement of hostile interests, to thwart the efforts made to preserve the integ rity of the Union, and to accomplish the results of open treason without incurring its judicial penalties. To await the results of slow judicial prosecution was to allow crime to be consummated, with the expectation of subsequent punishment, instead of preventing its accomplishment by prompt and direct interference.

"The freedom of the press is secured by a high constitotional sanction. But it is freedom and not license that is guaranteed. It is to be used only for lawful purposes. It cannot aim blows at the existence of the Governinent, the Constitution, and the Union, and at the same time claim its protection. As well could the assassin strike his blow at human life, at the same time claiming that his victim should not commit a breach of the peace by a counter blow. While, therefore, this department neither enjoyed nor claimed the power to suppress such treasonable publications, but left them free to publish what they pleased, it could not be called upon to give them circulation. It could not and would not interfere with the freedom secured by law, but it could and did obstruct the dissemination of that license which was without the pale of the Constitution and law. The mails established by the United States Government could not, upon any known principle of law or public right, be used for its destruction. As well could the common carrier be legally required to transport a machine designed for the destruction of the vehicle conveying it, or an innkeeper be compelled to entertain a traveller whom he knew to be intending to commit a robbery in his house.

"I find these views supported by the high authority of the late Justice Story, of the Supreme Court of the United States. He says, in commenting on that clause of the Constitution securing the freedom of the press:

"That this amendment was intended to secure to every citizen an absolute right to speak, or write, or print whatsoever he might please, without any responsibility, public or private, therefor, is a supposition too wild to be indulged in by any rational man. This would be to allow to every citizen the right to destroy at his pleasure the reputation, the peace, the property, and even the personal safety of every other citizen. A man might, out of mere malice or revenge, accuse another of the most infamous crimes; might excite against him the indignation of all his fellowcitizens by the most atrocious calumnies; might disturb, nay, overturn all his domestic peace and embitter his par ental affections; might inflict the most distressing punish ment upon the weak, the timid, and the innocent; might prejudice all a man's civil and political and private rights; and might stir up sedition, rebellion, and treason, even against the Government itself, in the wantonness of his passions, or the corruption of his heart. Civil society could not go on under such circumstances. Men would then be obliged to resort to private vengeance to make up the defl


ciency of the law; and assassinations and savage cruelties would be perpetrated with all the frequency belonging to barbarous and cruel communities. It is plain, then, that the language of this amendment imports no more than that every man has a right to speak, write, and print his opinions upon any subject whatever, without any prior restraint, so always that he does not injure any other person in his rights, person, property, or reputation; and so always that he does not thereby disturb the public peace, or attempt to subvert the Government."

"Of the cases presented for my action, upon the principles above named, I have by order excluded from the mails twelve of these treasonable publications, of which several had been previously presented by the grand jury as incondiary and hostile to constitutional authority."

I am not aware that at any time, nor from any quarter, during that long session, any inquiry or complaint was made, or objection taken touching that action, or the considerations then presented in support of it. From this it was fairly inferred that Congress then unanimously recognized the action as not only in harmony with, but in direct aid of, the Constitution of the United States, then shaken by the assaults of its avowed enemies.

siderations there is reason to doubt whether the abolition-
ists have a right to make use of the mails of the United
States to convey their publications into States where their
circulation is forbidden by law, and it is by no means
certain that mail-carriers and postmasters are secure from
the penalties of that law, if they knowingly carry, dis-
tribute, or hand them out.
As well may
the counterfeiter and robber demand the use of the mails
for consummating their crimes, and complain of a violation
of their rights when it is denied.

"Upon these grounds a postmaster may well hesitate to
be the agent of the abolitionists in sending their incendiary
publications into States where their circulation is prohibi-
ted by law; and much more may postmasters residing in
those States refuse to distribute them. *
I do
not desire to be understood as affirming that the sugges-
tions here thrown out ought, without the action of higher
authority, to be considered as the settled construction of the
law, or regarded by postmasters as the rule of their future
action. It is only intended to say that in a sudden emer-
gency, involving principles so grave and consequences so
serious, the safest course for postmasters and the best for
the country is that which you have adopted.
You prevent your Government from being the unwilling
agent and abettor of crimes against the States which strike
at their very existence, and give time for the proper au-
thorities to discuss the principles involved and digest a safe
rule for the future guidance of the department.




"While persisting in a course which philanthropy recommends and patriotism approves, I doubt not that you and the other postmasters who have assumed the responsi bility of stopping these inflammatory papers in their pas sage to the South will perceive the necessity of performing your duty in transmitting and delivering ordinary newspapers, magazines, and pamphlets, with perfect punctuality. Occasion must not be given to charge the postmasters with carrying their precautions beyond the necessities of the case, or capriciously applying them to other cases in which there is no necessity; and it would be the duty, as well as the inclination, of the department to punish such assumption with unwonted severity. This suggestion I do not make because I have any apprehension that it is needed for your restraint, but because I wish this paper to bear upon its face a complete explanation of the views which I take of my own duty in the existing emergency."

The question was afterwards repeatedly presented in this department. In February, 1857, it was brought before Postmaster General Campbell, in connection with the exclusion of the Cincinnati Gazette from postal privileges in Mississippi. A certain postmaster at Yazoo had denied it the privilege of his post office. Mr. Campbell referred the question to the Attorney General of President Pierce's administration. Under date of March 2, 1857, the Attorney General, as the law officer of the Government, replied officially to the Postmaster General, justifying such action on the part of postmasters, and asserting, among others, the following arguments and conclusions:

The immediate occasion of the orders excluding certain newspapers from the mails was a communication to this department of the action of a grand jury of the United States circuit court for the Southern District of New York. Their presentment was in the following words. [See ante for presentment.]

This authoritative exhibition of the character of these papers, as disseminators of treason and instigators of the highest crime known to our laws, could not be disregarded, accompanied, as it was, by representations of their dangerous effect upon the military operations of the country. Entertaining the highest possible regard for the liberty of the press, distinguished from its uncontrolled and criminal license, I would not, except in time of war, have adopted the arguments of my predecessors in office, in justification of the non-delivery of printed matter sent through the mails. The question has been repeatedly presented to my predecessors in time of peace in relation to printed matter styled "incendiary," or "abolition in its character," and in respect to the States now in insurrection. While justifying postmasters in their refusal to receive or forward matter described by the general terms of the postal laws as "mailable matter," an eminent Postmaster General of the administration of General Jackson, under date of August 22, 1835, addressed a letter to the postmaster at New York giving his views upon the question under discussion. The New York postmaster had assumed to decide that certain newspapers, placed in that post office for conveyance in the mails, were incendiary in their character, and calculated to promote insurrection. He refused to forward them. The Postmaster General, declining himself to decide upon the character of the publications in question, and refusing to make the orders thereon, justified his deputy postmaster in the decision made by him, and supported him by the following arguments, extracted from his letter of that date, to which the attention of Congress was subsequently called. That Congress, however, by its inaction, seemed to concur in the right and the policy of excluding such alleged treasonable and insurrectionary publications from the mails.

POST OFFICE DEPARTMENT, August 22, 1835. "Postmasters may lawfully know, in all cases, the con tents of newspapers, because the law expressly provides that they shall be so put up that they may be readily oxamined; and if they know those contents to be calculated and designed to produce, and, if delivered, will certainly produce, the commission of the most aggravated crimes upon the property and persons of their fellow citizens, it cannot be doubted that it is their duty to detain them, if not even to hand them over to the civil authorities.

"ATTORNEY GENERAL'S OFFICE, "March 2, 1857. "With these premises we have the main question very much simplified. It is this: Has a citizen of one of the United States plenary indisputable right to employ the functions and the officers of the Union as the means of enabling him to produce insurrection in another of the United States? Can the officers of the Union lawfully lend its functions to the citizens of one of the States for the purpose of promoting insurrection in another State?

"Taking the last of these questions first, it is obvious to say that, inasmuch as it is the constitutional obligation of the United States to protect each of the States against 'domestic violence,' and to make provision to suppress insurrections,' it cannot be the right of the United States, or of any of its officers, and, of course, it cannot be their duty to promote, or be the instrument of promoting, insurrection in any part of the United States.


"As to the first question, likewise, it seems obvious to say, that, as insurrection in any one of the States is violation of law, not only so far as regards that State itself, but also as regards the United States, therefore no citizen of the Union can lawfully incite insurrection in any one of the States. It would be preposterous to suppose that any citizen of the United States has lawful right to do that which he is bound by law to prevent when attempted by any and all others; and monstrous to pretend that a citizen of one of the States has a moral right to promote or commit insurrection or domestic violence, that is, robbery, burglary, arson, rape, and murder, by wholesale, in another of the States.

"If it be justifiable to detain papers passing through the mail, for the purpose of preventing or punishing isolat ed crimes against individuals, how much more important is it that this responsibility should be assumed to prevent insurrections and save communities? If, in time of war, a postmaster should detect a letter of an enemy or spy passing through the mail, which, if it reached its destination, would expose his country to invasion and her armies to destruction, ought he not to arrest it? Yet, where is the legal power to do so?

As a measure of great public necessity, therefore, you and the other postmasters who have assumed the responsibility of stopping these inflammatory papers will, I have no doubt, stand justified in that step before your country and all mankind. * "Are the officers of the United States compelled by the Constitution and laws to become the instruments and accomplices of those who design to baffle and "These considerations, it seems to me, are decisive of the make nugatory the constitutional laws of the States; to fill question of the true construction of the act of Congress. them with sedition and murder and insurrection; to over-Of that it is impossible for me to doubt. Its enactment is, throw those institutions which are recognized and guaran- that if any postmaster shall unlawfully detain,' he shall tied by the Constitution itself? In these con- be subject to fine, imprisonment, and disqualification.

Then, if the thing be of lawful delivery, it cannot be lawfully detained; while, on the other hand, it cannot be unlawful to detain that which it is unlawful to deliver. Such is the plain language and the manifest import of the act of Congress.

"I do not mean to be understood that the word 'unlawfully' of the act determines the case: on the contrary, my conclusion would be the same, though that word had not been here inserted. By employing it, indeed, the act expressly admits that there may be lawful cause of detention. But such lawful cause would not the less exist, although its existence were not thus expressly recognized. And, of all conceivable causes of detention, there can be none more operative than treasonableness of character, for in every society the public safety is the supremest of laws.

"Nay, if, instead of expressly admitting lawful causes of detention, the act had undertaken to exclude them-if, for instance, it had in terms required the postmasters to circulate papers, which, in tendency and purpose, are of character to incite insurrection in any of the States-still my concluI should say of such a provision sion would be the same. of law it is a nullity, it is unconstitutional; not so by reason of conflict with any State law, but because inconsistent with the Constitution of the United States.

and disqualification? Is the inconvenience which the for-
eign Government or its emissary may suffer, in not being
able to effect the free circulation of such treasonable inatter
it was addressed suffers, in his not being able to receive adi
or the inconvenience which the disaffected person to who
to circulate further such treasonable matter-are these in-
conveniences to outweigh the inconvenience to the whole
country, as well as to individuals, of insurrection, and of
civil or servile war? Is that the true construction of the
act of Congress? I think no legal expositor could hesitate
to say, no.

"Now in what does the general case supposed, with its all but self-evident conclusions, differ from the specific came ment possesses the sovereign right, as an act of war, to under consideration? Simply, that any European Govern attack us with attempts to excite insurrection as well as with cannon-subject to be repelled by the sovereign power of the Union-but no citizen of the United States possessEM legal right to promote rebellious acts in any part of the country, whether as against the authority of the United States or of the particular State in which he is, or of any other of the States.

"The Constitution forbids insurrection; it imposes on Congress and the President the duty of suppressing insurrection; this obligation descends through Congress and the President to all the subordinate functionaries of the Union, civil and military; and any provision of an act of Congress requiring a Federal functionary to be the agent or minister of insurrection in either of the States would violate palpably the positive letter, and defeat one of the primary objects, of the Constitution.




"In fine, the proposition may be made universal to the effect that no person in the United States, whether he be citizen, subject, or alien, has the legal right to promote reIn the foregoing series of supposibellion. tions we have reasoned out a conclusion from the premises of the attempt of a foreign Government, by the use of our And shall not the citizens of one of mails and post offices, to promote insurrection in the United States. the States of the Union be held entitled to the same security part of their fellow-citizens of other States? from attempts to promote insurrection among them, on the On the whole, then, it seems clear to me that a deputy postmaster, or other officer of the United States, is not required by law to become knowingly the enforced agent or instrument of enemies of the public peace, to disseminate, of the Union printed matter, the design and tendency of in their behalf, within the limits of any one of the States which are to promote insurrection in such State."*

"It is intimated in one of the documents before Again, in 1859, Mr. Holt, then at the head of this departme that to permit a deputy postmaster to detain a newspaper because of its imputed unlawfulness would be to erect ment, in a letter dated the 5th of December of that year, him into a censor of the press. These are but words of rhe-addressed to a postmaster in Virginia, adhered to the prece torical exaggeration. Public journals are a necessary part of our social life, just as much as the steamboat, the railway train, or the telegraph. There is not the least reason to apprehend that we shall suffer ourselves to be deprived of them by the interposition of unlawful impediments to their circulation.

dents, and said:

"One of the most solemn constitutional obligations imposed on the Federal Government is that of protecting the States against 'insurrection' and 'domestic violence; of course none of its instrumentalities can be lawfully employed in inciting, even in the remotest degree, to the very crime which involves in its train all others, and with the suppression of which it is especially charged."

These citations show that a course of precedents has existed in this department for twenty-five years-known to Congress, not annulled or restrained by act of Congress-in ter, decided by postal officers to be insurrectionary, or trea accordance with which newspapers and other printed matsonable, or in any degree inciting to treason or insurrection, have been excluded from the mails and post offices of the United States solely by authority of the executive adminis tration. This, under the rules settled by the Supreme Court of the United States, as applicable to executive construction of laws with whose execution the departments are specially

"These, my conclusions, apply only to newspapers, pamphlets, or other printed matter, the character of which is of public notoriety, or is necessarily brought to the knowledge of the postmaster by publicity of transmission through the mails unsealed, and as to the nature of which he cannot plead ignorance.


* "We shall appreciate the true legal relation of the whole question if we consider a supposition which has more than once heretofore been actual fact, and may be such again. Suppose that some European Government-whether in the prosecution of war, or induced by hostility of purpose not yet become war, but tending towards it, or in the spirit of misdirected propagandism of its own particular social or political opinions-should undertake to produce revolution or insurrection in the United States. Would it, in that case, be the duty, would it be the right, of the Government or officers of the Union to aid the foreign Government in its inimical machinations? To this genera! inquiry, of course, there can be but one possible answer. It would be the manifest duty of every officer of the United States-nay, of every officer of each State-nay, of every citizen of the United States, to resist, and to do everything in his power to defeat all such machinations; for every citizen of the United States is under engagement, express or implied, to uphold and maintain the Constitution.

* JEFFERSON DAVIS thus expressed himself on this opinion of Attorney General CUSHING a few months after its publication:

WASHINGTON, January 4, 1858. GENTLEMEN: When I last addressed yon in answer to your letter communicating the views and feelings of the citizens of Yazoo City, in relation to the circulation of incendiary matter through the mails of the United States, I promised that you should hear from me further, and gave you assurance of such action by the last Administration as would be satisfactory to you.

I have thus long delayed the promised communication in expectation of receiving the opinion of the Attorney General upon the legal merits of the case, the question having been referred to him by the Postmaster General, the Hon. James Campbell.

"In the general contingency supposed it is quite imma-
terial whether foreign attempts to produce revolution con-
sist of exhortations to insurrection by word of mouth-that
is, the introduction of emissaries of sedition into the coun-
try-or of exhortations to insurrection in the form of hand-
bills, newspapers, or pamphlets. In whatever manner at-
tempted, the thing itself would be an act of wrongful or
hostile attack on our sovereignty and on our national and
private peace; defensible as an act of war on the part of an
enemy Government, but otherwise against natural law,
The Attorney General, in the opinion enclosed, sustains
against public law. against municipal law; and therefore,
on all these accounts, requiring to be manfully withstood
and counteracted by every sound-hearted and true-minded the conclusion of the President and the Postmaster Gen-
citizen of the United States, and more especially by all offl-eral, and so satisfactorily disposes of the question at issue
cers, civil and military, of the Federal Government, from that I hope that we shall be saved from any further,
the President down to the humblest village postmaster in tion of it.
the land.

Concurring fully with you in your opinion of the p
of a State, the duty of its citizens, and the obligationi
community in such contingency as that presented by the
case reported in your letter, I trust we shall also agree that
the matter has been concluded in a manner worthy of the
With great regard, I am your friend and fellow-citizen,
State-Rights Administration under which it arose.
M. Harlow, committee, Yazoo City.
To Messrs. Robert Bowman, George B. Wilkinson, and A.

"The general supposition includes printed, equally with oral, exhortations to insurrection. Take now, by itself, the case of printed matter of that description. Is it the legal duty of the Post Office Department knowingly to circulate such matter? Is it the legal duty of deputy postmasters? Or reducing the general supposition down to its narrowest expression in the limited exigencies of the present case, is a deputy postmaster required knowingly to circulate such matter under penalty of indictment, removal from office,

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