Volume II Part 40 (1/2)
Many of these persons who had been illegally seized and imprisoned now commenced suits for damages. This led to another step on the part of the Government of the United States, by which the judiciary of the State was entirely subverted and deprived of all jurisdiction in these cases. Congress pa.s.sed an act on March 3, 1863, which provided that any order of the President of the United States, or arrest made under his authority, when pleaded, should be a defense, in all courts, to any action or prosecution for any search, seizure, arrest, or imprisonment made, done, or committed, or any acts omitted to be done, under or by virtue of such order, or under color of any law of Congress. The act further provided that all actions against officers and others for torts in arrests might be removed for trial to the next Circuit Court of the United States held in the district, and said:
”It shall then be the duty of the State court to accept the surety and proceed no further in the cause or prosecution, and the bail that shall have been originally taken shall be discharged.”
It will be noticed that by the terms of this act the case could be removed to the Circuit Court when the defendant ”filed a pet.i.tion stating the facts verified by affidavit.” Thus the jurisdiction of all the courts of the State of New York was made to terminate and cease upon the simple word of the defendant accompanied by an affidavit. But these courts were inst.i.tuted by the consent of the governed, for the protection of the personal freedom of the citizen; yet in the cases brought before them they ordered the removal on the ground that they involved the question of the const.i.tutionality of an act of Congress, over which the courts of the United States had a jurisdiction. The absurdity of this plea is manifest; for it is founded on the presumption that the question, whether, under authority from the President of the United States, any one, without intervention of the judicial tribunals, can incarcerate a citizen, is a question which can be treated as const.i.tuting a case arising under the Const.i.tution of the United States. Any statute authorizing such acts is palpably void, and not ent.i.tled to be a ground for a bearing under an appeal.
The subjugation of the government of the State of New York was made in another section of the same act of Congress of March 3, 1863. It declares:
”That, during the present rebellion, the President of the United States, whenever in his judgment the public safety may require it, is authorized to suspend the privilege of the writ of _habeas corpus_ in any case throughout the United States, or any part thereof.”
Let us turn to the words of the Const.i.tution of the United States which are contained in the grant of powers to Congress:
”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.”
It will be seen that two facts are required to exist before the Congress of the United States can suspend the privilege of this writ.
Congress must, therefore, determine the existence of these facts before it has power const.i.tutionally to act. If it finds either fact to exist and not the other, it has no power to suspend the privilege of the writ. There must be rebellion, and the public safety must require the suspension. When Congress finds these facts to exist, it can enact the suspension. It is the judgment of Congress alone that can determine that the public safety requires the suspension. This can not be delegated to the judgment of any other department of the Government. Therefore, when Congress tells the President, in the above-mentioned act, that he is authorized to suspend the privilege of this writ whenever, in his judgment, the public safety may require it, then that body undertakes to do that for which it has no authority in the Const.i.tution. The States delegated the power solely to Congress; an act to transfer the trust to any other depository could rightfully have no force whatever.
Now, the State of New York, in which this writ was thus suspended by the Government of the United States, was one of the Northern States and a most ardent advocate of the Union. It had contributed more men and money to support the Government of the United States than any other State, and than some whole sections of States. Peace reigned throughout all its borders. Yet, in this quiet and ”loyal” State, whose people had given so freely to aid the Government of the United States, a claim was now set up to the right to nullify the rights and immunities of every citizen, by that Government which had already nullified the powers of every court in the State. This was done by the declaration of the President that ”the public safety” required the suspension of the privilege of the writ of _habeas corpus_.
The act of Congress was pa.s.sed on March 3, 1863, and on September 15th the President issued his proclamation, and, referring to the authority claimed to have been granted by the act, he proceeded to say:
”_Whereas_, In the judgment of the President, the public safety does require that the privilege of said writ shall now be suspended throughout the United States, in cases where, by the authority of the President of the United States, military, naval, and civil officers of the United States, or either of them, hold persons under their custody, either as prisoners of war, spies, or aiders or abettors of the enemy, or officers, soldiers, or seamen, enrolled, drafted, or mustered, or enlisted in, or belonging to, the land or naval forces of the United States, or as deserters therefrom, or otherwise amenable to military law, or to the rules or articles of war, or the rules and regulations prescribed for military and naval service by the authority of the President of the United States, or for resisting a draft, or for any other offense against the military or naval service: Therefore I do hereby proclaim and make known that the privilege of the writ of _habeas corpus_ is suspended throughout the United States in the several cases before mentioned throughout the duration of said rebellion.”
No autocrat ever issued an edict more destructive of the natural right to personal liberty. Not only was the State government of New York deprived of the power to fulfill its obligations to protect and preserve this right of its citizens, but every State government of the Northern States was in like manner subverted. The only distinction known among the citizens was that established by the Government of the United States in answer to the question applied to each one, ”Is he loyal or disloyal?” The only test of loyalty was based on submission, and, as usual in such cases, the most abject in spirit were the most loyal to the usurper. Ail those liberties of conduct and action which stamp the true freeman everywhere throughout the world disappeared; and the suppressed voice, the apprehensive look, and the cautious movements were subst.i.tuted for the free speech, the open brow, and fearless tread which had characterized the American.
Another step in the subjugation of the government of the State of New York was made by the domination over it of the military power of the Government of the United States. This took place in a time of peace in the State, when the courts were all open and the civil administration of affairs was un.o.bstructed. On July 30, 1863, the United States commanding General of that department addressed a letter to Governor Seymour, saying:
”As the draft under the act of Congress of March 3, 1863, for enrolling and calling out the national forces, will probably be resumed in this city (New York) at an early day, I am desirous of knowing whether the military power of the State may be relied on to enforce the execution of the law, in case of forcible resistance to it. I am very anxious there should be perfect harmony of action between the Federal Government and that of the State of New York; and if, under your authority to see the laws faithfully executed, I can feel a.s.sured that the act referred to will be enforced, I need not ask the War Department to put at my disposal, for the purpose, troops in the service of the United States.”
Governor Seymour replied on August 3d:
”I have this day sent to the President of the United States a communication in relation to the draft in this State. I believe his answer will relieve you and me from the painful questions growing out of an armed enforcement of the conscription law in this patriotic State, which has contributed so largely and freely to the support of the national cause during the existing war.”
On August 8th General Dix writes again:
”It is my duty, as commanding officer of the troops in the service of the United States in this department, if called on by the enrolling officers, to aid them in resisting forcible opposition to the execution of the law; and it is from an earnest desire to avoid the necessity of employing for the purpose any of my forces, which have been placed here to garrison the forts and protect the public property, that I wished to see the draft enforced by the military power of the State, in case of armed or organized resistance to it... . I designed, if your cooperation could not be relied on, to ask the General Government for a force which should be adequate to insure the execution of the law and to meet any emergency growing out of it.”
Meantime Governor Seymour received no answer to his letter to the President. He had asked for a suspension of the draft, on the ground that the enrollments in the city were excessive as compared with other portions of the State, and that due credit was not given for the past. He therefore replied to General Dix, saying:
”As you state in your letter that it is your duty to enforce the act of Congress, and, as you apprehend its provisions may excite popular resistance, it is proposed you should know the position which will be held by the State authorities. Of course, under no circ.u.mstances, can they perform duties expressly confided to others, nor can they undertake to relieve others from their proper responsibilities. But there can be no violations of good order, or riotous proceedings, no disturbances of the public peace, which are not infractions of the laws of the State; and those laws will be enforced under all circ.u.mstances. I shall take care that all the executive officers of this State perform their duties vigorously and thoroughly, and, if need be, the military power will be called into requisition. As you are an officer of the General Government, and not of the State, it does not become me to make suggestions to you with regard to your action under a law of Congress. You will, of course, be governed by your instructions and your own views of duty.”
On August 18th General Dix thus wrote to the Governor:
”Not having received an answer from you, I applied to the Secretary of War on the 14th inst. for a force adequate to the object. The call was promptly responded to, and I shall be ready to meet all opposition to the draft.”
The force sent by the Secretary of War, to keep the peace and subjugate the sovereignty of the people, amounted to forty-two regiments and two batteries. There was no occasion for the exertion of their powers, but the wrong to the State of New York was none the less gross.
Again, the subjugation of the government of the State of New York by the domination of the military power was made still more manifest by another act on the part of the Government of the United States. A spurious proclamation, seeming to have been issued by the President, calling for four hundred thousand men, by a fraudulent imposition appeared in two papers of New York City (the ”Journal of Commerce”
and the ”World”) on the morning of May 18, 1864. It was immediately contradicted by the authorities at Was.h.i.+ngton, and orders were issued, under which the offices of these papers were entered by armed men, the property of the owners seized, the premises held by force for several days, and the publications suspended. At the same time the office of the independent telegraph line was occupied by a military force in the name of the Government of the United States.
The operators were taken into custody, and the proprietors of the newspapers were ordered to be arrested and imprisoned. But these orders were suspended.
Governor Seymour immediately instructed the District Attorney to proceed against the offenders, saying: