OCR Text |
Show 418 NOTES. If the legislature of the United States have given to courts ths power to punish con tempts, it is no answer to this defence, for two reasons-first, because the words of the law do not necessarily exclude the intervention of a jury; and secondly, if they do, the law itself is contrary to the words of the constitution, and can only be supported on the plea of necessity; to which head it is referred by the English writers on the subject. The only responsibility which has been incurred in the present case, is that which arises from necessity. This, the respondent agrees, must not be Uoubtful ; it must be apparent, from the circumstances of the case, or it forms no justification. He submits all his acts, therefore, to be tested by this rule. To the forcible reasons which he has detailed, as impelling him to this measure, he ought to add, that he has since, by the confession of the enemy himself, received a confirmation of the opinions, which he had then good reason to believe; that there were men among us so depraved, as to give daily and exact informa .. tion of our movements, and our forces; that the number of those persons was considerable, and their activity unceasing. The names of those wretches will probably be discovered; and there· spondent persuades himself, that this tribunal will employ itself, with greater satisfaction, in inflicting the punishment due to their crimes, than it now does in investigating the measures that were taken to counteract them. If example can justify, or the practice of others serve as a proof of necessity, the respondent has ample materials for his defence; not from analogous construction, but from the conduct of all the different departments of the state government, in the very case now under discussion. The legislature of the state, having no constitutional power to xcgu late or restrain commerce, on the -- day of December last, passed an act, laying an embargo-the executive sanction.ed it, and, from a conviction of its necessity, it was acquiesced m. The same legislature shut up the courts of justice, for four months, to all civil suitors-the same executive sanctioned that law, and the judiciary not only acquiesced, but solemnly approved 'it. The governor, as appears by one of the letters quoted, under- took to inflict the punishment of exile upon an inhabitant,_ w~tl~out any form of law, merely because he thought that an mdmdual's presence might be dangerous to the pubJic.safety. NOTES. 419 The judge of this very court, duly impressed with the emer· gency of the moment, and the necessity of employing every means of defence, consented to the discharge of men, committed and indicted for capital crimes, without bail, and without recogni· 7..a.nce; and, probably un.rler an impression that the exercise of his functions would be useless, absented himself from the place where his court was to he holden, and postponed it. session, during a regular term. Thus the conduct of the legislative, executive, and judiciary branches of the government of this state, have borne the fullest testimony of the existence of the necessity, on which the respon· dent relies. The unqualified approbation of the legislature of the United States, and such of the individual states as were in session, ought also to be admitted, as no slight means of defence; inasmuch as all these respectable bodies were fully apprized of his proclama· tion of martialla\v, and some of them seem to refer to it, by thanking him for the energy of his measures. The respondent, therefore, believes he has established the necessity of proclaiming martial law. He has shown the effects of 'that declaration; and it only remains to prove, in answer to the rule, that the power assumed from necessity, was not abused in its exercise, nor improperly protracted in its duration. All the acts mentioned in the rule, took place after the enemy had retired from the position they had at first assumed-after they had met with a signal defeat, and aft,er an unofficial account had been received of the signature of a treaty of peace. Each of these circumstances might be, to one who did not see the whole ()'round, a sufficient reason for su·pposing that further acts of en~ :rgy and vigour were unncct'ssary. On the mind of th.e respon· dent, they had a difterent effect. The enemy had rehred from their position, it is true; but they were still on tho coast, and within a few hours' sail of the city. They had been defeated, and with loss; but that loss was to be repaired by expected reinforcements. Their numbers still muclt more than quadrupled all the regular fot•ces which the respondent could command; and the term of service of his most efficient militia force was about to ex· pire. Defeat, to a powerful and active eneth!, was more li~e]y to operate as an incentive to renewed and mcreased exertto~, than to inspire them ·with despondency, or to paralyze thc1r |