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: The act of Congress, passed in 1789, "to establish the judicial courts of the United States," no doubt provides that 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 1. Of treason, or treasonable efforts or combinations, to an attempt to subvert all the securities which the founders subvert the Government of the Confederate States. 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 deat, to extinguish the legislative branch, as Cromwell did the Long Parliament, and substitute a Barebones Legislatare 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 incar cerate another citizen not 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. MILITARY ARRESTS. States. 3. Of combining to assist the enemy, or of communicating intelligence to the enemy, or giving him aid and comfort. 4. Of conspiracies, preparations and attempts to incite servile insurrection. 5. Of desertions or encouraging desertions, or harboring deserters, and of attempts to avoid military service: Prorided, 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 trailing with the enemy and other offences against the laws of the Confederate States, enacted to promote their success in the war. 9. Of conspiracies, or attempts to liberate prisoners of war held by the Confederate States. 10. Of conspiracies, or attempts or preparations to aidthe 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.* The following order has been issued by Gen- of the Government by destroying or attempting to destroy eral Augur: 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 Deeded, until the report has first been forwarded for action at these headquarters. Second: All officers serving in this department employing detectives will send with as little delay as possible a list of those employed to these headquarters, specifying the author ity 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: J. H. TAYLOR, "Confederate" Legislation. [From the Richmond Sentinel, Feb. 17, 1864.] SUSPENSION OF THE WRIT OF HABEAS CORPUS. 13. Of treasonable designs to impair the military power the vessels or arms, or munitions of war, or arsenals, founderies, workshops, or other property of the Confederato States. 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 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. 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 : A Bill to suspend the privilege of the writ of habeas corpus I. That during the present invasion of the Confederate 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. Woon, 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. 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. But 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 custody of such person forthwith 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 as 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. NEW YORK, August 16, 1861. ORDER OF THE POSTMASTER GENERAL. POST OFFICE Department, August 22, 1861. SIR: The Postmaster General directs that from and after your receipt of this letter none of the newspapers published in New York city which were lately presented by the grand jury as dangerous, from their disloyalty, shall be forwarded in the mails. I am, respectfully, your obedient servant, SEIZURES OF NEWSPAPERS. PHILADELPHIA, August 22-On the arrival of the New York train this morning Marshal Millward, and his officers, examined all the bundles of papers and seized every copy of the New York Daily News. The sale of this paper is totally suppressed in this city. Marshal Millward also seized all the bundles of the Daily News at the Express 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." Other newspapers were similarly excluded fron the mails, and in due time, the subject engaged 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 efforts were persistently directed to the advancement of hostile interests, to thwart the efforts made to preserve the integrity 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 constitutional 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 Government, 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 perental affections; might inflict the most distressing punishment 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 defi 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 brert 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 incendiary 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. 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 mail 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 adetter to the postmaster at New York giving his views upon the question under discussion. The New York postmester 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. siderations there is reason to doubt whether the abolitionists 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, distribute, or hand them out. * As well may the counterfeiter and rubber 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 prohibited 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 emergency, involving principles so grave and consequences 80 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 authorities to discuss the principles involved an 1 digest a safe rule for the futur 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 edministration. 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: "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 Stato? 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 examined; and if they know those contents to be calculated and designed to produce, and, if delivered, will certainly "Taking the last of these questions first, it is obvious to produce, the commission of the most aggravated crimes say that, inasmuch as it is the constitutional obligation of upon the property and persons of their fellow citizens, it the United States to protect each of the States against 'docannot be doubted that it is their duty to detain them, mestic violence,' and to make provision to suppress insurif not even to hand them over to the civil authorities. *rections,' it cannot be the right of the United States, or of 2 "If it be justifiable to detain papers passing through any of its officers, and, of course, it cannot be their duty to the mail, for the purpose of preventing or purishing isolat-promote, or be the instrument of promoting, insurrection in ed crimes against individuals, how much more important any part of the United States. 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 make nugatory the constitutional laws of the States; to fill them with sedition and murder and insurrection; to overthrow those institutions which are recognized and guarantied by the Constitution itself? In these con * * "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. "These considerations, it seems to me, are decisive of the question of the true construction of the act of Congress. Of that it is impossible for me to doubt. Its enactment is, that if any postmaster shall unlawfully detain,' he shall 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 conclusion would be the same. I should say of such a provision 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 matter or the inconvenience which the disaffected person to whom. it was addressed suffers, in his not being able to receive and to circulate further such treasonable matter-are these inconveniences 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 case under consideration? Simply, that any European Government possesses the sovereign right, as an act of war, to 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 possesses 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 insur-bellion. rection; 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. "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. * "It is intimated in one of the documents before me that to permit a deputy postmaster to detain a newspaper because of its imputed unlawfulness would be to erect him into a censor of the press. These are but words of rhe 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. "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 general 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 de feat all such machinations; for every citizen of the United States is under engagement, express or implied, to uphold and maintain the Constitution. "In the general contingency supposed it is quite immaterial whether foreign attempts to produce revolution consist of exhortations to insurrection by word of mouth--that is, the introduction of emissaries of sedition into the country-or of exhortations to insurrection in the form of handbills, newspapers, or pamphlets. In whatever manner attempted, 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, 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 citizen of the United States, and more especially by all officers, civil and military, of the Federal Government, from the President down to the humblest village postmaster in the land. "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, * "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 re In the foregoing series of supposi tions we have reasoned out a conclusion from the premises of the attempt of a foreign Government, by the use of our mails and post offices, to promote insurrection in the United States. * And shall not the citizens of one of the States of the Union be held entitled to the same security from attempts to promote insurrection among them, on the part of their fellow-citizens of other States? 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, in their behalf, within the limits of any one of the States of the Union printed matter, the design and tendency of which are to promote insurrection in such State."* Again, in 1859, Mr. Holt, then at the head of this department, in a letter dated the 5th of December of that year, addressed to a postmaster in Virginia, adhered to the prece 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 accordance with which newspapers and other printed matter, decided by postal officers to be insurrectionary, or trea sonable, 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 *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 you 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. The Attorney General, in the opinion enclosed, sustains the conclusion of the President and the Postmaster General, and so satisfactorily disposes of the question at issne that I hope that we shall be saved from any further agitation of it. Concurring fully with you in your opinion of the powers of a State, the duty of its citizens, and the obligation of our 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 State-Rights Administration under which it arose. With great regard, I am your friend and fellow-citizen, JEFFERSON DAVIS. To Messrs. Robert Bowman, George B. Wilkinson, and A M. Harlow, committee, Yazoo City. charged, would establish my action as within the legal construction of the postal acts authorizing the transportation of printed matter in the United States mails. It would setthe the right of this department and its various officers to resist all efforts to make them particeps criminis of treason and rebellion, by compelling them to circulate and distribute with their own hands the moral weapons which are to bring civil war to their firesides, with its horrible train of barbarities in the destruction of life and property. Upon the like considerations I have, at different times, excluded from the mails obscene and scandalous printed matter on exhibition of its criminal immorality. If an unsealed printed publication were offered to the mails, instigating murder, arson, destruction of railroads, or other crimes, and advocating an organization for such purposes, I should, upon the same principles, without hesitation, ex clude it from the mails as unlawful matter, in the absence of a contravening act of Congress. I do not wish to be understood, however, as indorsing, but rather as distinctly dissenting from, some of the arguments and conclusions, and from the extent to which preceding Administrations have gone, as indicated by some of the foregoing citations. The precedents and arguments go far beyond any action which I have taken, or would be willing to take, under the like circumstances. 1st. I reject that portion of the precedents which allows twenty-eight thousand postmasters of the country to judge, each for himself, what newspapers are lawful and what unlawful; what may go in the mails and what shall be excluded. I have refused to allow postmasters to sit in final judgment upon all the interests involved, subject as they are to conflicting local prejudices. The Postmaster General, who is more directly responsible to Congress, and more accessible to their inquiries, should alone exercise such hority, in whatever degree it exists, and should not devoive it on subordinates. Whatever control can be lawfally exercised over the mails by a postmaster may always be exercised or ordered by the chief, under whose direction the law expressly subordinates the postmaster. This is a self-evident proposition. It has, however, been sustained by the official opinion of the Attorney General of the United States, dated March 2, 1857. 24. I dissent from the extent to which the doctrine has been carried by late administrations, that in time of peace, and in the absence of all hostile or criminal organizations, operating against Constitution or law, either a Postmaster General, or any postmaster, can at will exclude from the mails newspapers and other printed matter which contain discussions obnoxious to some special interest, but not aimed against Government, law, or the public safety. It is too dangerous a discretion to be exercised or desired by any executive officer attached to the constitutional freedom of the press. Such has been, in some cases, the action of this department in late years, and I take this occasion to break the too great uniformity of its decisions in this respect. Even in time of war, the power so long conceded should be used with great care and delicacy. I say in time of war, because the executive department has powers then which do not attach to it in time of peace. The Constitution provides that no person shall be deprived of life, liberty, or property without due process of law; nor shall private property be taken for public use without just compensation." Yet, in time of war, the life, liberty, and property of persons in the United States, being also insurrectionary enemies of the United States, are necessarily taken without any process except that of powder and the bayonet. And no man denies the right as an incident of war. Yet, in peace, it could not be done. These acts are as thoroughly constitutional in war as they are unconstitutional in peace. In harmony with this principle, I would give far greater latitude to alleged wrongful and obnoxious printed inatter in a period of peace than would be justifiable in a time of war. This reply to the inquiry transmitted to me by the committee embraces the following conclusions: First. That the exercise of the authority inquired of rests upon the Constitution of the United States, and the definition of mailable matter given in the postal law, as construed by past administrations of this department, enforced by the ethical opinion of a late Attorney General of the United States, and known to and recognized by former Congresses of the United States. Second. That a power and a duty to prevent hostile printed matter from reaching the enemy, and to prevent such matter from instigating others to co-operate with the enemy, by the aid of the United States mails, exist in time of war, and in the presence of treasonable and armed enemies of the United States, which do not exist in time of peace, and in the absence of criminal organizations. Tard. That the present Postmaster General has restricted the exercise of the power during this war far within the scope claimed and allowed by former Administrations in periods of national peace. I have the honor to be, very respectfully, your obedient servant, M. BLAIR, Postmaster General. The committee review the case, and conclude as follows: Your committee are not unmindful of the fact that too great caution cannot be exercised in arriving at a conclusion as to what is and what is not lawful mailable matter; or, in other words, what papers, publications, or messages are treasonable in their character, or for other reasons unlawful, and should, therefore, be excluded from the mails. In the case now before the committee the grand jury of one of the federal courts in the State of New York concur red in opinion with the head of the Post Office Department in the construction of the character of the publications, and the purposes of the publishers, it being, too, in a time when extreme vigilance was demanded in the executive the Union. And the object being to secure that noble and master General was not only within the scope of his powers, patriotic object, your committee believe the act of the Postbut induced solely by considerations of the public good. department of the Government to preserve the integrity of Mr. GEO. H. PENDLETON, of Ohio, (of the Judiciary Committee,) in his speech, March 3, 1863, in the House, quoted these two additional paragraphs from AMOS KENDALL'S opinion of 1835: ** "After mature consideration of the subject, and seeking the best advice within my reach, I am confirmed in the opinion that the Postmaster General has no legal authority, by any order or regulation of the Department, to exclude from the mails any species of magazines, newspapers, or pamphlets. Such a power vested in the head of this Department would be fearfully dangerous, and has therefore been withheld. Any order or letter of mine directing or officially sanctioning the step you have taken would, therefore, be utterly powerless and void, and would not in the slightest degree relieve you from its responsibility. "The Postmaster General has no legal power to prescribe any rules for the government of postmasters in such cases; nor has he ever attempted to do so. They act in each case on their own responsibility; and if they improperly detain or use papers sent to their offices for transmission or delivery it is at their peril, and on their heads falls the punishment. If in time of war a postmaster should detect the letter of an enemy or a 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 his legal power to do so?" He added: In 1836, Mr. Calhoun, as chairman of a special committee of the Senate, reported a bill making it a penal offence for any postmaster to receive into the mails for transmission to any person within a State, or to deliver out of the mails to any such person, any publication the circulation of which was forbidden by that State. Subsequently the first clause of the bill was stricken out, and the latter, relating to the delivery of such matter, was retained. It gave rise to much discussion, and elicited an extremely able debate from the most eminent members of that then very able body. Mr. Calhoun, the zealous advocate of the bill, contended that a bill of this nature was the only one which Congress had the power to pass; that Congress could not discriminate in reference to character what publications shall or shall not be transmitted through the mail, without abridging the liberty of the press, and subjecting it to the control of congressional legislation; but that no such restriction applied to the States; they might forbid such publications as they thought dangerous, and that Congress had the power, and ought to exercise it, of co-operating with the States in repressing the circulation of publications thus prohibited. The circulation of anti-slavery documents, tending to excite servile insurrection, had become a great evil. It had awakened fears of trouble among the slaves, and had therefore exasperated the people. Most of the slaveholding States had passed laws forbidding their circulation under severe penalties. They were still carried through the mails, and it began to be questioned whether the postmasters were not relieved from the penalties of the State law because they were acting under the sanction of Federal law. Great anxiety existed to relieve the apprehensions of the southern people. The President, General Jackson, recommended the subject most earnestly to Congress. He did not pretend that there existed any power of relief in any of the Executive Departments. Senators, almost without exception, expressed a determination to go as far as they could to apply a remedy. But the bill was most strenuously opposed. It was said to curtail the freedom of the press. ** * The bill was lost by a majority of seven; Messrs. Benton, Clay, Crittenden, Southard, Wall, Leigh, Goldsborough, among others from the slaveholding States; and Messrs. |