USA > Wisconsin > History of the bench and bar of Wisconsin, Vol. I > Part 5
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The action of the supreme court, thus virulently denounced, was had in pursuance of an act of Congress passed during the first adminis- tration of President Washington, and approved by him.
The resolution must, of course, be classed as brutum fulmen, and was probably so regarded by many who gave their votes in its support. But it illustrates how little respect was entertained for and accorded to the government of the United States in the days before the war.
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The breaking out of the war in 1861 brought new and often very important questions both to the federal and to state courts.
Probably no war in human history has, in all its phases, been so largely adjudicated upon in courts of justice as the war of the American rebellion. The time was when the very question of whether it was a war or not was disputed in judicial forums; and this question was not finally set at rest until the decision of the celebrated Prize Cases by the supreme court of the United States in 1863. (2 Black, 635.) The interesting topic of the federal war decisions is however outside the scope of this paper.
The first two war cases which came to the supreme court of Wis- consin presented questions of the validity of enlistments of minors. Both cases turned upon the construction of statute law. The enlist- ment of a young man over eighteen years was held valid, while one of a boy less than seventeen, without the consent of parent or guardian and with knowledge of his age on the part of the recruiting officer, was ad- judged illegal. In re Gregg, 15 Wis., 479; In re Higgins, 16 Wis .. 351.
The next case presented a question of the highest importance under
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the constitution of the United States. It was, whether the writ of habeas corpus can be suspended by the act of the President of the United States. Here was a question of the liberty of the citizen on the one hand, of the power of the government on the other.
The writ of habeas corpus is the recognized means by which one imprisoned, or in any manner deprived of his liberty, may bring the question of the lawfulness of the restraint before a judicial tribunal. Generally speaking, this right should never be denied him. But there may be extraordinary exigencies when considerations of public safety override every .private right, and when even a judicial inquiry into the lawfulness of an imprisonment cannot be permitted. All this is recog- nized by the constitution of the United States in the following provision found in section 9 of article I: "The privilege of the writ of habeas corpus shall not be suspended unless when in case of rebellion or in- vasion the public safety may require it."
But the question remains, what authority, under the government of the United States, shall determine when and under what circum- stances, in case of rebellion or invasion, the public safety requires the suspension of the writ. The general subject of article I of the consti- tution is legislative. Can any but the legislative power suspend the writ? This was the important point of the Kemp case.
The question was not new. It had arisen almost immediately on the opening of hostilities and had been the subject of a decision by the chief justice of the United States and of much public discussion. In April, 1861, when violent resistance had been offered to the passage of union troops from Philadelphia to Washington, President Lincoln issued a military order, among other things, suspending the writ of habeas corpus along the route of travel through the state of Maryland, which bodies of soldiers hastening to Washington were obliged to take. A month later, one John Merriman, who was enlisting recruits for the rebel army in the city of Baltimore, was arrested by the military authori- ties and lodged in Fort McHenry. A writ of habeas corpus was issued to General Cadwalader, then in command, by Chief Justice Taney. General Cadwalader made return, stating the treasonable action of
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Merriman on account of which he had been arrested and was detained, but declined to produce his person, claiming suspension of the writ under the order of the President. The chief justice issued an ineffectual attachment against General Cadwalader and wrote an elaborate opinion, holding that the President had no authority to suspend the writ, and that in the absence of action by Congress to that effect, disobedience to the writ, under any circumstances, was an unjustifiable infraction of the constitution and the laws of the United States. This led at once to much heated discussion. Mr. Bates, the attorney general of the United States, in an official letter to the President, took the extremely opposite view, holding that the President had the right to suspend the writ in all cases of arrest made by his authority, when, in case of rebellion, the public safety, in his opinion, required it. The administration acted on the advice of the attorney general, and the President, from time to time, made orders for the suspension of the writ applying to different places and circumstances.
In the fall of 1862 the question came up in the state of Wisconsin. There had been forcible resistance to the execution of the conscription law in the county of Ozaukee. A number of persons, among them Nicholas Kemp, were arrested by the military authorities and confined at Camp Randall. A write of habeas corpus was issued by the supreme court of Wisconsin to Brigadier-General Elliot, commanding the de- partment of the northwest, calling upon him to produce their persons and his warrant for their detention before the court. General Elliot made return, stating the ground of the arrests, claiming a suspension of the writ of habeas corpus under general orders No. 14I issued by the President the 24th of September, 1862, and declining to release the prisoners from military custody. The question of the jurisdiction of the state court to enquire into the lawfulness of an arrest, when the latter is claimed under federal authority, which, as we have seen, was, at a later period, raised and decided in re Tarble, was not raised in this case. It turned wholly upon the right of the President to suspend the writ.
The order of the President, referred to, contained the following provisions :
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"First: That during the existing insurrection, and as a necessary measure of 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 court 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 sentence of any court martial or military commission."
The court approached the case with all the care which the ques- tion involved demanded. Each of the three judges delivered a separate opinion. It, was unanimously decided that the suspension of the writ under section 9 of article I of the constitution was a legislative, not an executive, act; and that it required an act of Congress to give it validity.
A distinction, which is not alluded to, and does not seem to have been recognized, in the decision of Chief Justice Taney in the Mer- riman case, was insisted upon with much force and clearness, between a general suspension, a de jure suspension it might be called, of the privilege of the writ, and a de facto suspension which necessarily takes place on the actual theater of war and its immediate surroundings, where martial law is declared and rules the hour, with which civil tribunals may not interfere. In the latter case it was admitted that disregard of the writ by a military officer under the authority of the commander in chief of the armies would be justified. But in this case the arrest took place at a great distance from the actual theater of war, in a state where martial law did not exist, where martial law had not superseded the civil authorities, and the judges were unanimous in the opinion that in such a case a suspension of the writ can only be effected by an act of Congress.
Coming from a court of unquestionable loyalty, as well as recog-
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nized ability, the decision could not fail to produce a great effect upon the country. It contributed very largely in inducing Congress at its next session to pass an act for the suspension of the writ. In re Kemp, 16 Wis., 359.
At the same term of court a question deeply affecting the re-enforce- ment of the armies at the front came before the supreme court. A draft to fill quotas had been made. The drafted men were in camp. Appli- cation was made for a habeas corpus for their release. It was claimed that the draft was "without color of legal authority under any statute or law of this state or of the United States, and altogether arbitrary and unlawful." The case arose before the "enrollment law," being "an act for the enrolling and calling out of the national forces," approved March 3, 1863, had been enacted by Congress; and the question was, whether the then existing laws, which left the enrolling of the militia and enforcing a draft very largely to rules and regulations to be estab- lished by the President, were constitutional and sufficient to authorize the draft. By its decision the court unanimously sustained the con- stitutionality of the law and the validity of the. rules and regulations established by the President under it. In re Griner, 16 Wis., 423.
In another case heard at the same term of court, the question was, whether an alien, resident in the state of Wisconsin, who had declared his intention to become a citizen of the United States, who was a quali- fied elector under the laws of the state and who had exercised his right of suffrage, being drafted, could claim exemption from military duty by reason of his alienage. The supreme court held that he could not; that although not a citizen of the United States, he must be regarded as a citizen of the state of Wisconsin, and that while entitled to enjoy its benefits he could not escape the burdens of such citizenship. In re Wehlitz, 16 Wis., 448.
It seems like a parody that in a later case, the same court was com- pelled to decide that while the resident alien, who had simply declared his intention to become a citizen of the United States and was entitled to vote and had voted, was subject to draft, yet his son, who had been brought here in infancy and lived here ever since and had voted, could
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not be drafted. . The reason was clear. While he had voted, he was not entitled to vote. His votes were illegal. For this he might have been punished; but under our laws he was an alien and exempt from the duties of citizenship. The case strongly illustrates the crudeness of our naturalization laws. In re Conway, 17 Wis., 527.
The case of Richard Oliver, 17 Wis., 681, brings us back once more to the question of habeas corpus. Young Oliver, in whose behalf a peti- tion had been presented, had been enlisted in the army. He was less than eighteen years of age. The merits of the application came strictly within the case of Higgins, already referred to. But in the meantime the act of Congress, approved March 3d, 1863, authorizing the Presi- dent of the United States to suspend the writ of habeas corpus, had been passed, and the President, in pursuance of its provisions, had issued his proclamation, dated September 15th, 1863, suspending the privilege of the writ in cases where persons were held under the command of the government as prisoners or as soldiers. It was contended that the act and the proclamation under it were invalid. The argument was, that the suspension of the writ could only be accomplished by a direct act of Congress; that the act in question did not of itself suspend it, but sought to delegate the power of suspension to the President. Mr. Justice Paine, in delivering the opinion of the court, admitted that the wording of the act afforded room for criticism, but concluded that in substance the act itself suspended the privilege of the writ, leaving it to the President to say in what cases the suspension should be in- sisted on. With this interpretation the act and proclamation were sus- tained and the writ was refused.
The question of the constitutionality of the act of Congress, making treasury notes of the United States a legal tender in the payment of debts, came before our supreme court at an early date. It was held at the January term of 1864, that the act was valid and applied to pre-exist- ing, as well as subsequently contracted debts. In making this de- cision our supreme court followed the supreme court and the court of appeals of the state of New York. Breitenbach vs. Turner, 18 Wis., I40.
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The case of Brodhead vs. The City of Milwaukee, 19 Wis., 624, brought a very interesting question before the supreme court. It was as to the constitutionality of an act of the legislature authorizing cities, villages and towns to raise money by taxation for the purpose of paying bounties to volunteers who had enlisted or should enlist so as to fill the quotas assigned to the respective localities under calls by the Presi- dent for troops. Does the power of municipal taxation extend to such a purpose? That was the chief question involved, although there were minor ones also upon particular features of the law in question. The court sustained the act, and held the tax which had been levied under it valid.
The Ozaukee county draft riots, referred to in the Kemp case, were destined once more to command the attention of our courts. It will be remembered that in the Kemp case it was decided that the sus- pension of the writ of habeas corpus claimed was illegal. ' It was also decided that the detention of Kemp as a prisoner in Camp Randall was illegal. The arrests had been made in 1862. The execution of the draft, under the then existing laws, was under the direction of the gov- ernor of the state. The honorable Edward Salomon was then gov- ernor. After his term of office had expired, John Druecker, one of the prisoners, brought suit against him in the circuit court of Milwaukee county for damages for an unlawful arrest and false imprisonment. It was a test case. The arrests had been quite numerous and if the suit had been successful many others would have followed in its wake. The case came to trial at Milwaukee before the Honorable Arthur Mac- Arthur, circuit judge, and a jury, in October, 1865. The full extent of the riot or insurrection against the enforcement of the laws for the re- cruitment of our armies, as it was claimed to be, and the necessity of resorting to military force for its suppression, were here first given in evidence. The arrest had been made on the 13th of November, 1862, and it appeared that after being detained for twelve days the plaintiff was delivered to the United States military commander, and that the governor had no control over him after that time. At the end of a long and patient trial, Judge MacArthur, in dignified and manly lan-
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guage, taking the form of a charge to the jury, gave his opinion that the plaintiff could not recover. A few extracts from this able opinion may be read with interest.
"When riot is to be subdued," said the learned judge, "the only means at once lawful and imperative, seem in times of quiet unusual and severe. Authority has but one virtue, and that is the promptness and decision with which responsibility is assumed. In such a crisis there is no time to hunt for precedents. Hesitation is synonymous with anarchy. Action is demanded to prevent threatened ruin and bloodshed. So that the appropriate remedies for such an evil belong to that violent class which inflame the system in order to eradicate the disease. Coercion is neither optional nor avoidable. It is the only re- source of legitimate authority, and the faithful executive who under such trying and overwhelming necessities is influenced only by con- siderations of public duty, cannot be followed by vexatious litigation for error of judgment. I have listened with emotion to the impressive and eloquent observations of the distinguished counsel for the plain- tiffs (the late Honorable Harlow S. Orton) on the danger of irrespon- sible power and on the necessity of protecting the citizen from its op- pressions. These sentiments are part of our education and habits, and as we are almost the only instance of a powerful government with a well-defined bill of personal liberty, of all others we should be the most anxious to preserve it; and it is gratifying that animated ad- dresses on this subject are always vindicated by the most popular favor and affection of the people. We should not, however, forget that public right and liberty are just as sacred as that claimed for the in- dividual, and when these are threatened with tumult and violence, the magistrate who averts the evil is a public benefactor, and conserves all rights, both of the state and of the citizen, and liberty and law are preserved for the benefit of all alike."
He then points out that in conformity with the act of Congress known as the conscription act of 1862, which, as we have seen, our supreme court had held valid in the Griner case, the President had con- ferred the duty of enforcing the conscription under it upon the governor
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of the state, that actual and threatened violence and armed resistance had justified a resort to military interference, that the arrests and im- prisonments in question were made in overcoming the resistance and enforcing the law by military force, and held that for acts thus done in the discharge of duty without malice to the plaintiff, the governor could not be held liable in an action for damages. The case was taken to the supreme court by appeal, and is reported in 21 Wis., 621. The de- cision of Judge MacArthur was there unanimously affirmed in an elab- orate opinion delivered by Mr. Justice Downer.
An interesting case came before our supreme court long after the close of the war involving the question of the suspension of the statutes of limitations in favor of residents of the states in rebellion.
The plaintiff was a resident of New Orleans during the war. In 1873 he brought an action of ejectment for an interest in lands in Wisconsin. A plea of ten years' adverse possession under color of title was sought to be avoided by disability to sue growing out of the state of war. The plaintiff claimed that his disability continued until August 20th, 1866, when the complete suppression of the rebellion and restora- tion of peace were declared by proclamation issued by President John- son. It had been so decided in favor of a resident of New Orleans by the supreme court of Indiana. Perkins vs. Rogers, 35 Ind., 124.
On the other hand, it was contended that under President Lincoln's proclamation of non-intercourse issued the 13th of July, 1861, which de- clared certain states, including Louisiana, in insurrection, but in terms excepted from its effect those parts of such states which might be "from time to time occupied and controlled by the forces of the United States," the occupation of the city of New Orleans by General Butler, which became complete on the 6th of May, 1862, removed every dis- ability, or at least, that the further proclamation of the President, dated April 2d, 1863, which expressly excepted the port of New Orleans from the territory in which commerce and intercourse were interdicted, had that effect.
The court in an opinion by Mr. Justice Cole sustained the latter view. Ahnert vs. Zann, 40 Wis., 622.
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Several other decisions will be noticed in connection with legislation relating to the war.
The legislature of 1861 held its first session amid the rumblings of coming war. By joint resolution, approved January 21st, 1861, it pledged the state to the support of the Union and tendered to the President of the United States "whatever aid in men and money" might be required "to enable him to enforce the laws and uphold the author- ity of the federal government."
By another joint resolution, approved February Ist, 1861, the legis- lature endorsed the report of representatives Tappan, of New Hamp- shire, and Washburne, of Wisconsin, a minority of the congressional committee of thirty-three, to the effect that it be
"Resolved, That the provisions of the constitution are ample for the preservation of the Union and the protection of the material in- terests of the country; that it needs to be obeyed rather than amended; and that extrication from the present difficulties should be looked for in efforts to protect and preserve the public property and the enforcement of the laws, rather than in new guarantees for particular interests, and concessions to unreasonable demands."
A joint resolution of March 12th, 1861, recognized in the inaugural address of Abraham Lincoln "the words of the true patriot and the sagacious statesman," and pledged "the faith of the people of Wiscon- sin to aid the President of the United States in carrying out. the prin- ciples indicated in his inaugural address to the fullest extent, putting into the scale, if need be, 'our lives, our fortunes and our sacred honor.' "
An act was passed and approved April 13th, 1861, that in case a call should be made by the President of the United States upon this state for aid in maintaining the Union and the supremacy of the laws, or to suppress rebellion or insurrection, the governor should "take such measures as in his judgment shall provide in the speediest and most efficient manner for responding to such call," and to that end accept the services of volunteers and supply them with uniforms and necessary equipments, and appropriating one hundred thousand dollars for the purposes of the act. (Chap. 239.)
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The legislature, in both branches, had resolved that no business should be done after three o'clock of the 13th of April, and that final adjournment should take place on the 15th. In the meantime Fort Sumter was assailed and surrendered. This induced the continuance of the session for two days, during which the act just referred to was amended by increasing the appropriation from one to two hundred thousand dollars, and also appropriating twenty-five hundred dollars to the governor of the state for his contingent expenses as commander-in- chief. (Chap. 307.)
An act was also passed directing the bank comptroller "for the purpose of sustaining the credit of the banks of the state of Wisconsin, and protecting the people who hold the circulating notes thereof, from the unnecessary loss which would be occasioned by the sacrifice of the state stocks held in trust for the redemption of such circulating notes, in the present unsettled state of national affairs," to suspend all action under existing laws for the sale of securities pledged for the payment of bank notes until the first of December, 1861, and prohibit- ing notaries public, under severe penalty, from protesting any notes of Wisconsin banks for non-payment prior to that date. (Chap. 308.)
Chapter 309, amended by chapter 7 of the special session, exempted all persons entering the military service, during such service, from all civil process, and required all courts to suspend proceedings in any action against such a person until it should be made to appear that he was no longer in the military service.
This done, the legislature adjourned. But the state of the country became rapidly more alarming and on the 15th of May it met again, under the call of the governor, in extra session. This session was de- voted exclusively to war measures, the most important of which will be briefly noted.
By chapter 2, counties, towns, cities and villages were authorized to expend money and to levy taxes to provide for the support of fam- ilies of volunteers who needed such assistance.
Chapter 4 provided for raising and organizing not to exceed six regiments of infantry, including three already called into service of
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the United States; and that in case all six should be called, two addi- tional regiments should be raised as a reserve, and that as often as a call should be made by the general government, the governor should be authorized to accept the services of volunteers to the extent of two regi- ments in addition to the call, so that a reserve force should be con- stantly ready. The term of service was to be three years. The details of enlistment, organization, drill and instruction, the purchase and dis- tribution of military stores and supplies were all provided for. The act made an appropriation of one million dollars.
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