The aegis & intelligencer. [volume] (Bel Air, Md.) 1864-1923, 1864-08-19
Opinion of Judge Russell.

Opinion of Judge Russell
The people Us. John. 4. Dir and 9th.
ers.--lt is unnecessary for me, in deciding
this matter, to rehearse the facts OF this
case. The defendants, through their
counsel, place. themselves uuder the pro-
lection Of section 4, of the Act of Con-
gress of March 3, 1868, entitled "An act
relating to habeas corpus aud regulating
judicial proceedings in certain cases" IF
that provision is constitutional, it assimi-
lates the President of the United States
during the existence Of the present rebel
lion to an absolute monarch, clothes him
with all the imaginary perfection of that
monarch, and makes him incapable of do
ing any wrong. This is very novel aud
stattling doctrine to advance under a re
publican furm of government. I have
given the case "a most careful considera-
ton, on the one hand seeking to avoid an
undue interference with the agents Of the
general government in the performance
of their duty, and, on the other, Keep
ing before me my own obligation to up
hold aud enforce the laws Of the state. l
do not deem it proper to state in detail
the view | Gu ertain upon the legal prin-
cipe SO ably discussed before me by the
counsel on both sides. Such an EXPOSE
ton Of the law would be more appropriate
should this case come before the court for
trial. 1t strikes me, however, as fit oc-
caslon to enable the great questions involv.
ed in it TO be brought up in such shape
as to admit of their being absolutely and
finally settled. If the &C. of Congress in
question is constitutional in the particular
contended for by the defense, it does look
as though it impaired to the President
powers raising him above the instrument
which creates his Office, and giving him the
right, in his discretion, to obey that in
strument or not.
The principle is not mooted for decis.
ion in this case as to how far the Pres-
dent can act upon state in which insur-
rectiou or rebellion prevails, and where
the power of the civil authorities have
been suspended, and the civil law substan-
TALLY explo led. In such condition of
things he must and ought to have very
great powers III order to restore and main
tain the laws. In this state the ciuH poo
er as and has al,oays been, in the ascendant.
Our citizens are supposed to enjoy the
blessings Of the federal Constitution, and
repose under the benign operations of their
own immediate legislation. IF rebellion
in any OF the insurrectionary states can de.
prive'them of this, then the government
OF every state in the Union is at the mercy
OF every other state. 1t cannot be posi-
BILE that any effort to suppress an insur-
rection in seeding state in the Union re-
quires any disturbance the institutions of
the loyal states. If the President can direct
anything to be done in this state be pleas
es, and his order is a perfect shield to
those who obey his commands, he becomes
despot, and is no longer the chief mag.
lstrate of free people. The distinc-
ton, then, is between what he can order
to be done in loyal state and one which
is rebeiious, and claims to have retired
from our confederacy.
Ii he is empowered to bring back the
latter to its allegiance, and to force it to
submit to the federal Constitution and the
laws enacted in pursuance Of it, is he en-
powered to obhterate, and, for the time
being, to wipe out all constitutional guar
antees in favor of the former? 1t ought to
be the law, if it is not, that the will OF
the President is not supreme in loyal
State. 10 "a certain extent, the federal
government, like IN individual, is protec-
ted by State laws, and in return is to re-
s2ect and obey them. These suggestions
would appear to be fairly deducible from
the hcalthful principles established by the
Supreme Court Of the United States in
Lutte vs.. Barreme 2, Glance ITO, and
Luther VS., Bar en- I, uow.rd u S. Rp.
/. They certainly sanction the doctrine
that governments, like individuals, must