Ex Parte Field

The citation for this case is 9 Fed. Cas. 1, Case No. 4,761. It’s an October, 1862 case from the Circuit Court for the District of Vermont, Federal Judge David A. Smalley presiding. Anson Field brought a petition for habeas corpus, and this was the decision on that petition. He was held in accordance with orders from President Lincoln and signed by Secretary of War Stanton. The orders read:

“Official War Bulletins. Persons liable to draft not allowed to leave their county. Washington, Friday, August 8th, 1862. The following order has just been issued by the war department: War Department, Washington, D. C., August 8th, 1862. An order to prevent the evasion of military duty, and for the suppression of disloyal practices. First: By direction of the president of the United States, it is hereby ordered that, until further orders, no citizen liable to be drafted into the militia shall be allowed to go to a foreign country; and all marshals, deputy marshals, and military officers of the United States, are directed, and all police authorities, especially at the ports of the United States on the sea-board, and on the frontier, are requested, to see that this order is faithfully carried into effect; and they are hereby authorized and directed to arrest and detain any person or persons about to depart from the United States in violation of this order, and report to Major L. C. Turner, judge advocate, at Washington city, for further instructions respecting the person or persons so arrested and detained. Second: Any person liable to draft, who shall absent himself from his county or state before such draft is made, will be arrested by any provost marshal, or other United States or state officer, wherever he may be found within the jurisdiction of the United States, and conveyed to the nearest military post or depot, and placed on military duty for the term of the draft; and the expenses of his own arrest and conveyance to such post or depot, and also the sum of five dollars as a reward to the officer who shall make such arrest, shall be deducted from his pay. Third: The writ of habeas corpus is hereby suspended in respect to all persons so arrested and detained, and in respect to all persons arrested for disloyal practices. Edwin M. Stanton, Secretary of War. Persons discouraging enlistments, to be arrested. The following order, authorizing the arrest of persons discouraging enlistments, has been issued: War Department, Friday, August 8th, 1862. Ordered—First: That all United States marshals, and superintendents or chiefs of police, of any city, town, or district, be, and they are hereby, authorized and directed to arrest and imprison any person or persons who may be engaged, by act, speech, or writing, in discouraging volunteer enlistments, or in any way giving aid and comfort to the enemy, or in any other disloyal practice against the United States. Second: That an immediate report be made to Major L. C. Turner, judge advocate, in order that such persons may be tried before a military commission. Third: The expenses of such arrest and imprisonment will be certified to the chief clerk of the war department, for settlement and payment. Edwin M. Stanton, Secretary of War.” [9 Fed. Cas. 1,2] When the court asked which of these orders caused Field’s arrest, the marshal replied, “that said arrest and detention was and is had under the order entitled, ‘Persons discouraging enlistments, to be arrested,’ copied in the first return.” [9 Fed. Cas. 1, 2]

In his ruling, Judge Smalley said, “The order first referred to in the return states, that it is made ‘by direction of the president of the United States,’ and assumes to direct all marshals and military officers of the United States, and authorize all police authorities, to arrest, &c. It further assumes to suspend the writ of habeas corpus in relation to all persons arrested for disloyal practices. Neither at the time this order was issued, nor at the time the proceedings were had upon this habeas corpus, had congress or the president declared that the public safety required that martial law should be established, or that the writ of habeas corpus should be suspended, in loyal states. It will not be pretended that Vermont is not a loyal state.” [9 Fed. Cas. 1, 3] Regarding Field, Judge Smalley said, “The petitioner is a citizen not subject to military law, his age, being over-sixty, not only excusing, but excluding him from military service, unless by that order every citizen is subjected to martial law.” [9 Fed. Cas. 1,3]

Judge Smalley continues, “This order was made, and the action under it was had, before any attempt was made to establish martial law. Can it be contended, that, with the construction claimed for it, it is not in direct violation of section 9, of article 1, of the constitution; and of article 4 of the amendments thereto, which declares, that ‘the right of the people to be secure in their persons, &c, shall not be violated,’ and that ‘no warrants shall issue but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched and the persons or things to be seized;’ and of article 5 of the amendments, which declares, that no person shall be ‘deprived of life, liberty, or property, without due process of law?’ If there be any force in language, it appears to me too plain for discussion, that either the constitution or the order must fall.” [9 Fed. Cas. 1, 3]

Regarding the second order, he says, “The second order, entitled, ‘Persons discouraging enlistments, to be arrested,’ does not profess to be issued by the order or authority of the president, or to suspend the writ of habeas corpus, and it is only by borrowing two of the provisions of the first order, and appending them to the second, that the detention in this case, and the disobedience to the writ, can be pretended to be justified; for, even if the president possessed the delicate and dangerous power of suspending the writ of habeas corpus, it will hardly be claimed that he could delegate it to all or any of his subordinates, to be exercised when, in their discretion, the ‘public safety’ might require it, any more than he could delegate the veto power. An order so entirely unprecedented, and so clearly in derogation of the common rights of the citizen, it is the duty of courts to construe most strictly. I cannot think, therefore, that it was intended, by itself, or in connection with the other, to have the operation which it is contended should be given to it or them.” [9 Fed. Cas. 1, 5]

Smalley tells us, “Events which have transpired subsequently to the 1st of September, indicate very decidedly that the president did not intend that the orders should have any such construction. On the 6th of September, both of the orders of the war department, of the 8th of August, were rescinded; and, on the 24th of September, the president issued his proclamation, over his own signature, countersigned by the secretary of state, establishing, for reasons therein assigned, martial law over all the loyal states, and, as a consequence thereof, suspending the writ of habeas corpus. What effect should be given to that proclamation, I will consider hereafter. But the fact that the orders of the 8th of August, which, upon the construction claimed to be given to them, were broad enough to embrace every species of disloyalty, in word or act, were revoked in less than thirty days after they were issued, and that, eighteen days thereafter, the president issued his own proclamation in relation to military arrests and the writ of habeas corpus, is strong evidence, that he did not regard the aforesaid orders from the war department as emanating from him.” [9 Fed. Cas. 1, 5]

The Marshal had produced an order sent to him regarding Field: “Washington, August 30th, 1862. To C. C. P. Baldwin, U. S. Marshal: Pay no attention to the habeas corpus for the liberation of Lyman, Barney and Field, and, if any attempt be made to liberate them from custody, resist it to the utmost, and report the names of all who may attempt it. By Order of the Secretary of War. L. C. Turner, Judge Advocate.” [9 Fed. Cas. 1, 5] Judge Smalley next addressed this telegram: “Though coming from a major in the war department, it is not addressed to a military officer, but to a civil officer, and one peculiarly the officer of the court, created for that purpose, to execute its bidding, and whose official oath binds him to do so. It peremptorily orders him to disobey the legal process of the court, and, if others attempt to enforce it, to resist them to the utmost. It contains an implied threat against the members of the bar, and other officers of the court, and even against the court itself, if either shall do anything judicially or professionally to liberate a prisoner, confined in jail upon what we have already seen was a despotic and illegal order of the war department. A more flagrant disregard of the constitution of the United States can hardly be conceived.” [9 Fed. Cas. 1, 5]

Judge Smalley wrote, “There are other facts connected with the arrest and detention in this case, which deserve notice. At the last term of this court, it was determined that, when two or more persons were acting together in any way to discourage enlistments, it constituted an offence under the act of July 31, 1861 (12 Stat. 284), and, under a charge to the grand jury, delivered by Mr. Justice Nelson, an indictment was found against three persons, who are now held for trial thereon. This was well known to the marshal. He had no order from the war department to arrest any particular person, but only authority to arrest such as he chose. If he had reason to suspect that this petitioner, and the two others who were arrested with him, had been discouraging enlistments, he could have gone to a United States commissioner, and procured a warrant and had them brought up, and, if there was sufficient evidence, held for trial before this court; and it was his duty to do so. But, instead of performing his duty under the law, as an officer of this court, he volunteered, as a military agent, to make the arrest upon his own motion, and throw the accused into jail in violation of law. When he was before me on the 1st of September, he was reminded that, if the petitioner was guilty of the offence charged against him, he could and would be punished under the law; but he still chose to disobey the positive order of the court to bring the prisoner before it. This was a high handed, arbitrary exercise of power, without right, and in defiant violation of all constitutional authority and law, and of all civil liberty; and, if the power and majesty of the law are not to be trampled on with impunity, but are to be vindicated and maintained, as in times past, he ought to be and must be punished therefore.” [9 Fed. Cas. 1, 6]

As a result of that, Judge Smalley wrote, “In considering the character and extent of that punishment, it becomes necessary to inquire what effect is to be given to the President’s proclamation of the 24th of September, 1862 (13 Stat. 730), which is as follows: ‘By the President of the United States of America. A proclamation. Whereas, it has become necessary to call into service, not only volunteers, but also portions of the militia of the states, by draft, in order to suppress the insurrection existing in the United States, and disloyal persons are not adequately restrained, by the ordinary processes of law, from hindering this measure and from giving aid and comfort in various ways to the insurrection: Now, therefore, be it ordered: First—That, during the existing insurrection, and as a necessary measure for suppressing the same, all rebels and insurgents, their aiders and abettors, within the United States, and all persons discouraging volunteer enlistments, resisting militia drafts, or guilty of any disloyal practice, affording aid and comfort to rebels against the authority of the United States, shall be subject to martial law, and liable to trial and punishment by courts martial or military commissions. Second—that the writ of habeas corpus is suspended in respect to all persons arrested, or who are now, or hereafter, during the rebellion, shall be, imprisoned in any fort, camp, arsenal, military prison or other place of confinement, by any military authority or by the sentence of any court martial or military commission. In witness whereof, I have hereunto set my hand, and caused the seal of the United States to be affixed. [L. S.] Done at the city of Washington, this twenty-fourth day of September, in the year of our Lord one thousand eight hundred and sixty-two, and of the Independence of the United States the eighty seventh. Abraham Lincoln. By the President: William H. Seward, Secretary of State.” [9 Fed. Cas. 1, 6] He asks, “Is the power thus assumed by the president conferred upon him by the constitution or any act of congress, or by both combined?” [9 Fed. Cas. 1, 6]

In considering that question, Judge Smalley says, “That a gigantic insurrection and rebellion has been, for more than eighteen months, and is still, raging in many of the states, and that the armies of the rebellious states have been, and are, invading loyal states with immense forces, that hundreds of millions of dollars have been expended, and many thousands of lives lost, in endeavors to suppress and put it down, and that hundreds of thousands of men are now in the field, and in hostile array against each other, we know to be true. That there are recruiting stations in nearly every town in the loyal states, and trcops in various places in every state being drilled and disciplined, in squads, companies, and regiments, and that a draft has been ordered, we also know. The constitution of the United States makes the president commander-in-chief of the United States army, and of the militia of the several states when called into the actual service of the United States. It also provides, that he shall ‘take care that the laws be faithfully executed,’ and that congress shall have power ‘to provide for calling forth the militia, to execute the laws of the Union, suppress insurrections, and repel invasions.’ In pursuance of this authority, the act of the 28th of February, 1795 (1 Stat. 424), was passed, the 2d section of which provides, ‘that whenever the laws of the United States shall be opposed, or the execution thereof obstructed, in any state, by combinations too powerful to be suppressed by the ordinary course of judicial proceedings, or by the powers vested in the marshals by this act, it shall be lawful for the president of the United States to call forth the militia of such state, or of any other state or states, as may be necessary to suppress such combinations, and to cause the laws to be duly executed.’ The same act provides for organizing and governing the militia when so called out, and for establishing courts martial, &c. The question as to the construction of this act came before the supreme court of the United States, in the case of Martin v. Mott, 12 Wheat. [25 U. S.] 19. It was an action of replevin, for certain goods and chattels, brought in a state court of the state of New York. The supreme court of that state gave judgment against the avowant, and that judgment was affirmed by the court for correction of errors, and from thence was taken by writ of error to the supreme court of the United States. The opinion of the court was delivered by Mr. Justice Story, who says: ‘The avowry, in substance, asserts a justification of the taking of the goods and chattels to satisfy a fine and forfeiture imposed upon the original plaintiff by a court martial, for a failure to enter the service of the United States as a militia man, when thereto required by the president of the United States, in pursuance of the act of the 28th of February. 1795 (chapter 101). It is argued, that this avowry is defective, both in substance and form, and it will be our business to discuss the most material of these objections.’ ‘For the more clear and exact consideration of the subject, it may be necessary to refer to the constitution of the United States, and some of the provisions of the act of 1795. The constitution declares, that congress shall have power ‘to provide for calling forth the militia, to execute the laws of the Union, suppress insurrections, and repel invasions;’ and also ‘to provide for organizing, arming, and disciplining the militia, and for governing such part of them as may be employed in the service of the United States.’ In pursuance of this authority, the act of 1795 has provided.’ &c. ‘It has not been denied here, that the act of 1795 is within the constitutional authority of congress, or that congress may not lawfully provide for cases of imminent danger of invasion, as well as for cases where an invasion has taken place. In our opinion, there is no ground for a doubt on this point, even if it had been relied on, for the power to provide for repelling invasions includes the power to provide against the attempt and danger of invasion, as the necessary and proper means to effectuate the object’ ‘The power thus confided by congress to the president, is, doubtless, of a very high and delicate nature. A free people are naturally jealous of the exercise of military power; and the power to call the militia into actual service is certainly felt to be one of no ordinary magnitude. But it is not a power which can be executed without a correspondent responsibility. It is, in its terms, a limited power, confined to cases of actual invasion, or of imminent danger of invasion. If it be a limited power, the question arises, by whom is the exigency to be judged of and decided?’ ‘We are all of opinion, that the authority to decide whether the exigency has arrived, belongs exclusively to the president, and that his decision is conclusive upon all other persons.’ Again, Mr. Justice Story says: ‘Whenever a statute gives a discretionary power to any person, to be exercised by him upon his own opinion of certain facts, it is a sound rule of construction, that the statute constitutes him the sole and exclusive judge of the existence of those facts. And, in the present case, we are all of opinion that such is the true construction of the act of 1795. It is no answer, that such a power may be abused, for there is no power which is not susceptible of abuse. The remedy for this, as well as for all other official misconduct, if it should occur, is to be found in the constitution itself.’ Mr. Justice Story states and disposes of another objection to the avowry, in these words: ‘In the first place, it is said, that the original plaintiff was never employed in the service of the United States, but refused to enter that service, and that, consequently, he was not liable to the rules and articles of war, or to be tried for the offence by any court martial organized under the authority of the United States. The case of Houston v. Moore, 5 Wheat [18 U. S.] 1, affords a conclusive answer to this suggestion. It was decided in that case, that although a militia man, who refused to obey the orders of the president calling him into the public service, was not, in the sense of the act of 1795, ‘employed in the service of the United States,’ so as to be subject to the rules and articles of war, yet that he was liable to be tried for the offence under the 5th section of the same act, by a court martial called under the authority of the United States.’ The decision of the state court was reversed, and the case was remanded to it, with directions to cause a judgment to be entered in favor of the avowant.” [9 Fed. Cas. 1, 6-7]

In discussing the President’s authority, he wrote, “This question as to the power of the president to call out the militia and establish martial law, was again before the supreme court of the United States in the case of Luther v. Borden, 7 How. [48 U. S.] 1. That was an action of trespass for breaking open the plaintiff’s house, in Rhode Island, and arresting him under a military order, growing out of what has been usually called the ‘Dorr Rebellion.’ The opinion of the court was delivered by that eminent jurist, Chief Justice Taney. After considering the question as to who should determine whether the exigency had arisen which would justify calling out the militia, the chief justice says: ‘After the president has acted and called out the militia, is a circuit court of the United States authorized to inquire whether his decision was right? Could the court, while the parties were actually contending in arms for the possession of the government, call witnesses before it, and inquire which party represented a majority of the people? If it could, then it would become the duty of the court, (provided it came to the conclusion that the president had decided incorrectly,) to discharge those who were arrested or detained by the troops in the service of the United States, or the government which the president was endeavoring to maintain. If the judicial power extends so far, the guarantee contained in the constitution of the United States is a guarantee of anarchy and not of order. Yet, if this right does not reside in the courts when the conflict is raging, if the judicial power is at that time bound to follow the decision of the political, it must be equally bound when the contest is over.’ ‘It is true,’ adds the chief justice, ‘that in this case the militia were not called out by the president. But upon the application of the governor under the charter government, the president recognized him as the executive power of the state, and took measures to call out the militia to support his authority, if it should be found necessary for the general government to interfere; and it is admitted in argument, that it was the knowledge of this decision that put an end to the armed opposition to the charter government, and prevented any further efforts to establish by force the proposed constitution. The interference of the president, therefore, by announcing his determination, was as effectual as if the militia had been assembled under his orders; and it should be equally authoritative.’ ‘It is said that this power in the president is dangerous to liberty, and may be abused. All power may be abused if placed in unworthy hands. But it would be difficult, we think, to point out any other hands in which the power would be more safe, and at the same time equally effectual. When citizens of the same state are in arms against each other, and the constituted authorities unable to execute the laws, the interposition of the United States must be prompt, or it is of little value. The ordinary course of proceedings in courts of justice would be utterly unfit for the crisis. And the elevated office of the president, chosen as he is by the people of the United States, and the high responsibility he could not fail to feel when acting in a case of so much moment, appear to furnish as strong safeguards against a willful abuse of power as human foresight could well provide.’ 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.’ ‘ [9 Fed. Cas. 1, 7-8]

He then applies these cases to the situation at hand: “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 wholly 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.” [9 Fed. Cas. 1, 8]

He next discusses where some authorities disagreed with his determination: “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 Cranch [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. But 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, give 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.” [9 Fed. Cas. 1, 8-9]

Notwithstanding, Judge Smalley ruled that Field had to be released and held the marshal in contempt of court and fined him. Here’s his explanation of that result: “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, jailor, 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 purges 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 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.’ ” [9 Fed. Cas. 1, 9]

This case is important because Judge Smalley ruled the President had the authority to suspend the privilege of the writ of habeas corpus without Congress when he had declared martial law. This is in contrast to Chief Justice Taney’s opinion in the Federal case of Ex Parte Merryman.


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