The evening Argus. [volume] (Rock Island, Ill.) 1861-1871, 1867-07-13

ing beyond the domain of argument.
The right of the citizen to his personal lib
erty, except when restrained of it upon q
charge of crime, aud for the purpose of judi
Icial investigation, Or under the command o.
the law pronounced thruagh q iudicial M
bunal, is one of those elsmentaky facts which
lie at the foundation Of our political struc-
iture. - t~e -
The cardinal objsct Of our consisution, rs
it is the end of all good government, 10 to
secure the people in their right to life liberty
and property. The more certainly to attain
this end, the trainers of our constitution not
only proclaimed certain great principles in
the bill of rights, but they distribute gov
ermental power into three distinct depart
ments, each of which, while acting in its
proper sphere, was designed 70 be indepen.a
dent Ut the others.
In the legislative department it belongs 70
declare tAe causes for which the liberty Of q
citizen may be taken from him to the judi
cial department TO determine the existence
Of such causes IN any given case, and to the
executive to enforce the sentence Of the law
pronounced through the court. If a citizen
can be arrested except upon charge OF NO.
lated law. and for the purpose of taking him
Ebeaore some judicial tribunal for investiga-
ton, then it is plain that the executive de-
partment has usurped the functions Of the
other two, and the whole theory of our gov
eminent, SO far as it relates to the protec-
ton Of private property, is overthrow. Il
/ Bnt On this question we. are not left mere
ly to argument drawn from the general spirit
and object Of our constitution. Our fore
fathers had fresh in their memory the strug-
gle which had cost in England to secure
those two great charters of freedom, the
magma charta of King Johns time, and the
bill of rights of 1858, and they incorporated
into our fundamental law whatever was
most valuable in these inducements for the
security of life, liberty and property. They
provided in article 4 Of the amendments,
fthat, .the rights of the people to be secure
| in their persons, houses, papers and effects
against unreasonable searches and seizures
shah not be violated and no warrant shall
| issue, but upon probable cause, supported by
| oath or affirmation, and particularly describ-
| ing the place to be searched, and the persons
| or things to be seized" They further pro-
vided in article that mo person shall be
deprived of life, liberty, or property, without
| due process of law" and, in article 6, that
| 'Tn all criminal prosecutions the accused shall
enjoy the right Of a speedy and public trial,
| by an impartial jury of the state and district
| ted, which district shall have been previous
| ly ascertained by law; and to be informed Of
| the nature and cause of the accusation to
| be confronted with the witnesses against
| him. to have compulsory process in obtain
| ing witnesses in his favor; and to have the
| assistance of counsel for his defense"
| 1t cannot be denied that, when this plain
| tiff was arrested, without writ or warrant
| and conveyed by the marshal to the city oil
New York, and then delivered, not into the
| custody of the law, upon criminal charge
but to military officer, to be imprisoned in
a military fortress, without judicial investi
CATION. and without even the charge O
crime, the letter and the spirit of all the fore
going provisions of the constitution wers
plainly violated, unless, under the state o
| facts set forth in the pleas, their operation
! as to the plaintiff, had been temporarily sus
pended. Was such the fact? On the answe
to this question must depend the decision o
this case.
1t is urged by the counsel for the defend
ant, that although the government canno
unlawfully make an arrest of this characte1
in time of peace, the power is necessarily in
cent to period of war, when exercised il
regard to those who are giving aid and com
fort to the enemy. The argument, brief,
| stated, Is as IoilOWS.
The facts set up in the plea, and admitted
by the demurrer, show that the plaintiff wa
co operating with the rebels. The rebellion
was more than an instruction 1t was
public war, as decreed by the supreme cour
of the United States in the prize cases re
ported in 2 Black, 635, at least after the pas
sage of the act of congress of July IL, 1861
Being public war, the government coul.
| exercise both belligerent and sovereign
rights. While the rebels did not cease t.
be rebels, they were at the same time public
enemies and the government had the RICH
so to treat them, Notwithstanding they wer'
| citizens of the United States. 1t could ex
ercise against them, as public enemies, nj
the powers given or recognized by the law.
of war, and if the plaintiff was cooperating
| with them in the manner stated in thes,
pleas, he, too, was public enemy, and liza
| BILE, not merely to prosecution IN the civil
courts, but to be arrested and imprisoned
by the military power as a prisoner of war
or beligerent.
; We have tried to state the argument O
the defendants counsel fairly. Its fallac
consists in the assumption that the plaintiff
by virtue of the facts alleged in the pleas
could be regarded as belligerent, in an
such sense as to make him. a prisoner Q
war. There is, it is true, in the third place
an allegation shat the plaintiff was in fac
engaged in levying war against the govern
ment of the United States" but this aver
ment is too vague and general to regards
by the court in any other light than the con
, clusion or inference, drawn by the pleadel
from his averments, in the plea, of specifi
| facts. These ayerments are, that there wa
| a secret political organization known as tn
J "Knights of the Golden Circle )" that thu
organization was hostile to the government
J and in close counsel and sympathy with tn
rebels, and cooperating branch of the re
J bellion in the northern states: that it wa
, constantly planning and plotting with tn
rebels for the success of the rebellion, an
: that the plaintiff was an active member {
: said society at the county of 10. Daviess, an
| state of Illinois, and duly engaged in aidin
f | it in its reasonable purposes, and was, i
3 fact, levying war against the government i
D the county aforesaid.
Ell On the familiar principle that pleadin
0 is to be construed most strongly against tn
e pleader, all that the court can intend frol
d this plea is, that the plaintiff was an activ
J. MEM Der of disloyal secret society at Il
8 north, whose purposes were reasonable, an
whose object was to aid the rebellion, an
8 said society, and the plaintiff as one of i
d members, were holding counsel with the re
If els and plotting for their success. The FIR
II special plea AYERS that the plaintiff was di
a cOurapinp enlistments lint the foregoino