possible to make out of a war measure, a measure of public safety; a measure of suspending the constitution, and of creating a dietatorship towering above the institutions of the country? Can any one at this day give the name of law to an act which sanctioned the 18th of Fructidor, and the establishment of renewed proscriptions? As to the Decree of 1811, that, in its letter and in its spirit, was no measure of public safety, but an act of military police prescribing a rule in regard to places of strength; this decree has perished like all exceptional measures, by which the Head of the Government had arrogated to himself the power of modifying the Constitution; it was one of the causes of his downfall.

[The public prosecutor replied to the first ground taken by the defence, as follows:]

The right to declare a state of siege is confided exclusively to the chief magistrate, or the executive power: to the King, under the responsibility of his ministers, by the Law of 1791; to the Executive Directory by the laws of the year V., under the duty of informing the legislative body, which, at that time, was to be in permanent session; to the Emperor by the Decree of 1811; in a word, always to the executive power, as governed by the necessities of the case and the law of public safety, and solely capable of appreciating the demand for the measure.

[To the second ground:]

What is the character and nature of the Charter? It is the usual and ordinary constitution of the country, the basis of our public law. What is a state of siege? A violent, extraordinary state of things, based upon the necessity of defence, and of providing for the common safety, attacked or threatened to be attacked by a war, or aggression of some kind. At such a time ordinary misdemeanors and crimes may become military misdemeanors and crimes, subject to the laws of war, and triable by its courts. The authority of military commissions is therefore necessarily connected with a state of siege. Without it a state of siege would be nothing but an abstraction; the laws which govern it belong to a state of things entirely outside of ordinary law. The 53rd and 54th Articles of the Charter are cited against us. Art. 53 merely reproduces Art. 62 of the Charter of 1814, and it has always been held that the "natural judges" of a person accused,

are those fixed by the law for the case or person to be judged. Art. 54 strengthens the prohibition contained in Art. 53. But, in the first place, permanent military commissions are not extraordinary commissions, newly and specially created for specific cases; they are recognised by a course of legislation; they are not abolished by the Charter. This has been held several times by this court under the Charter of 1830, as well as that of 1814. These tribunals are not an exception to the usual order of thingsthey are the usual rule of a different order of things. The Charter did not, and could not, provide for a state of siege; and never intended that the Government should stand disarmed, where circumstances have once showed the necessity of this exceptional state, outside of ordinary law. It follows that military commissions do not take cognizance by force of the Order of the 6th of June, but as a consequence of the state of siege, and because military tribunals belong to a state of siege, and are the usual judges, recognized as such by law, in cases by which this state is created and constituted, which is not the normal state provided for by the Charter.

[On the 29th of June the Court gave judgment as follows:]

Per cur. (After advisement in the council-chamber.) Whereas neither the Charter nor any subsequent law treats of the laws and decrees which govern a state of siege, and whereas these laws and decrees must therefore be carried into execution in all points not contrary to the Charter; having considered the Art. 77, L. 27 Ventose, year VIII., in these words: "No appeal can be taken against final judgments of juges de paix, except for want of jurisdiction or for exceeding the same, nor against the judgments of military tribunals of land and sea, except for the said causes, taken by a citizen not in the army and not impressed by law with a military character by reason of his duties;" Art. 1, L. 22 Messidor, year IV., as follows: "No crime is military, unless committed by a person forming a part of the army; no other person can be brought, as a defendant before judges appointed by military law;" Arts. 53, 54, and 56 of the Charter: "No person can be withdrawn from his natural judges." "Consequently, extraordinary commissions and tribunals cannot be created under what title or name soever." "The institution of juries is continued;" Art. 69, which extends the cognizance of juries to crimes of the press, and political crimes,

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

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

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? We 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.