and the law of October 8, 1831, which defines political crimes; Art. 103, Decree of December 24, 1811, as follows: "As regards all crimes the cognizance of which the commandant has not decreed fit to be left to the ordinary courts, the duties of officers of judiciary police are performed by a military provost, chosen as far as possible from the officers of gendarmerie, and the ordinary courts are replaced by the military courts;" and whereas this provision is irreconcileable with the letter and the spirit of the above-cited articles of the Charter; and whereas military commissions are ordinary tribunals solely for the judging of crimes committed by the military, or persons impressed by law with a military character, and become extraordinary tribunals when they extend their jurisdiction to crimes or misdemeanors committed by non-military citizens; and whereas Geoffroy, brought before the second military commission of the first military division, is neither in the army nor impressed with a military character, yet nevertheless said tribunal has implicitly declared itself to have jurisdiction and passed upon the merits, wherein it has committed an excess of power, violated the limits of its jurisdiction and the provisions of Art. 53 and 54 of the Charter, and those of the laws above cited: On these grounds, the Court reverses and annuls the proceedings instituted against the appellant before the said commission, whatsoever has followed therefrom, and especially the judgment of condemnation of the 18th June instant; and in order that further proceedings be had according to law, remands him before one of the judges of instruction of the court of first instance of Paris, &c.

Supplement à la Répertoire du Journal du Palais (1857), vol. I.,

p. 707, Arts. 50, 54, 55.

"The questions of jurisdiction, etc., discussed in 1832, arose again in consequence of the events of June, 1848, and new appeals were taken to the Court of Cassation; the Court was no longer confronted by the Charter of 1840, and this time declared that military commissions had jurisdiction to try persons, though not of the army, accused of having taken part in the insurrection of June 1848. (Journ. du Palais, vol. I., 1850, p. 223.)

"Art. 106 of the Constitution of 1848, for the purpose of putting an end to all judicial controversies as to the legality of a state of siege

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and its consequences, declared that a law should be passed to fix the cases in which a state of siege might be declared, and determined, at the same time, the forms and effects of this measure. This law was passed by the Legislative Assembly, and promulgated August 9, 1849 [which enacts as follows: Art. 2. The National Assembly solely can declare a state of siege, except as hereinafter excepted. Art. 3. In case of prorogation of the National Assembly, the President of the Republic may declare a state of siege, with the advice of the Council of Ministers. The President, when he has declared a state of siege, must immediately form the Commission created by virtue of Art. 32 of the Constitution, thereof, and, according to the importance of the circumstance, convoke the National Assembly. The National Assembly, from the time when it meets, maintains or abolishes the state of siege'], and still governs this important matter, except however one modification, resulting from Art. 12 of the Constitution of June 14, 1852, as regards the authority invested with the right of declaring a state of siege. By the terms of the Constitution of 1852, the Emperor has the right of declaring a state of siege in one or more departments, provided that he inform the Senate thereof, with the least delay."

MR. DUDLEY FIELD'S ARGUMENT IN MCCARDLE'S CASE.

ARGUMENT of Mr. DAVID DUDLEY FIELD, before the Supreme Court of the United States (March 6th and 9th, 1868), In the Matter of WILLIAM H. MCCARDLE, ex parte, Appellant.

Mr. FIELD-May it please the Court:

If I were ambitious to connect my name with a great event in the constitutional history of my country, I should desire no better opportunity than that which this case affords. What is here transacted will remain in the memory of men long after the feet which are treading the halls of this Capitol have made their last journey, and the voices now so loud are for ever silent. Although the part borne by the Bar in this transaction is inferior to yours, yet even they assume a portion of the responsibility, while the words that are to fall from you will stand for ever in the jurisprudence of the land.

In approaching the argument of so great a cause, it is of the first importance to exclude from it every extraneous or disturbing

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element. We should be lifted, if we may, above the strifes and passions of the hour into a serener air, overlooking a wider horizon. With the struggle for office, with the rise or fall of parties, with the policy of President or Congress, we have nothing to do. Within the walls of this chamber of justice we look only to the law and to the Constitution. That, however, does not prevent our taking care that the independence of the Bench and of the Bar be not menaced; or, if that happen, that the menace be repelled. I say this the rather, because one of the gentlemen who argued against us, saw fit to declare that it was the duty of counsel to admonish the Court. Admonition of what? Of impeachment, because you differ from Congress upon a constitutional question; of packing the Court at some future time; of enactment that two-thirds or threefourths of the whole shall be necessary to decide, or the exclusion of the Court from its chamber? Admonition from whom? know that the President has none to give; he disclaims it. Admonition from Congress? I have the highest respect for the members who perform the function of legislation for this country; but they are representatives, all of them, of States or districts. And when I reflect that from the great States of New York, New Jersey, Pennsylvania, Ohio, and California, they represent but a minority of the people, and that from ten States there are no representatives in either House: and when I reflect, further, that this legislative department for nearly two years submitted to the suspension of the Habeas Corpus by the Executive alone; that afterwards, when it passed an Act on the subject, it suffered the Secretaries of State and War to disregard and disobey its injunctions; that it enacted, besides, "That any order of the President, or under his authority, made at any time during the existence of the present rebellion, shall be a defence in all courts to any action or prosecution, civil or criminal, pending or to be commenced, for any search, seizure, arrest or imprisonment, made, done, or committed, or acts omitted to be done under and by virtue of such order "-a law which has scarce a parallel in history, save that of Denmark two centuries ago, which made a formal surrender to the Crown of all right and function of government: when I reflect on these things, the admonition, even were it otherwise proper, which it is not, appears to me shorn of all its force.

As a pendant to the admonition, we are told that this Court is not a co-ordinate department of the Government. Not a co-ordinate department? Is it meant that there is no department coordinate with Congress? This is the first time when it has been suggested here that the judicial department is not co-ordinate with either of the others. And certain I am, that in the great convention, where sat the conscript fathers who made this Constitution, such an idea never entered. For I find that at the beginning, for the original plan, it was resolved, as the first resolution of the convention, that "it is the opinion of this Committee that a national government ought to be established, consisting of a supreme legislative, executive, and judiciary." Turning to the comments of the founders of the Government, I find in the "Federalist," the fortyeighth and fifty-first numbers, written by Mr. Madison, this remarkable exposition, written as if in the spirit of prophecy :

"I shall undertake in the next place to show, that unless these departments be so far connected and blended as to give to each a constitutional control over the others, the degree of separation which the maxim requires as essential to a free government can never in practice be duly maintained."

"It will not be denied that power is of an encroaching nature, and that it ought to be effectually restrained from passing the limits assigned to it."

"The legislative department is everywhere extending the sphere of its activity, and drawing all power into its impetuous vortex."

"In a representative republic, where the executive magistracy is carefully limited, both in the extent and the duration of its power ; and where the legislative power is exercised by an assembly which is inspired by a supposed influence over the people, with an intrepid confidence in its own strength; which is sufficiently numerous to feel all the passions which actuate a multitude, yet not so numerous as to be incapable of pursuing the objects of its passions by means which reason prescribes; it is against the enterprising ambition of this department that the people ought to indulge all their jealousy, and exhaust all their precautions."

"To what expedient, then, shall we finally resort for maintaining in practice the necessary partition of power among the several departments, as laid down in the Constitution? The only answer that can be

given is, that as all these exterior provisions are found to be inadequate, the defect must be supplied by so contriving the interior structure of the government, as that its several constituent parts may by their mutual relations be the means of keeping each other in their proper places."

Let me now turn to the case before the Court. The appellant, McCardle, a citizen of Mississippi, was there arrested in October, 1867, and brought before a military commission, which assumed to act under the authority of the United States, to be tried, for publishing in a newspaper, of which he is editor, criticisms upon military officers, and advice to the electors not to vote, or how to vote, upon public questions. This citizen was not in the army or navy, nor connected with the military service, nor impressed with a military character. And the question is, whether he was rightfully brought before that commission to answer for that act: in other words, according to the Constitution and laws of this country, could a military commission, sitting in Mississippi, under Federal authority, bring to trial and judgment a civilian of that State, for words published concerning Federal military officers, and the duty of the electors? The words may have been coarse and intemperate. That does not enter into the question. But it may be observed, in passing, that they were not coarser or more intemperate than other words daily uttered concerning the highest civil officers of the country-the President, the Judges of this Court, and Members of Congress-not only by the public press, but in public bodies which call themselves respectable.

The act of this military commission is defended in this Court by counsel deputed by the Secretary of War. The defence rests upon certain Acts of Congress, commonly known as the Military Reconstruction Acts. And the point to be decided is, therefore, whether these acts are or are not reconcileable with the supreme law of this land? If they are, our great forefathers made a charter of government, intended to last for all generations, of such a character, that within eighty years from its adoption that Federal body to which the States-originally sovereign and independent—surrendered a portion of their power, is able to take upon itself the whole government of a State, and govern it by the army alone. Such is the question