31 How. Pr. 228, 45 Barb 142 (1865)
Suspension of Habeas Corpus
“When the necessity arises, the military power is paramount, and the laws are silent. But war is an anomalous condition. When peace is restored, or the necessity for military rule has terminated, the supremacy of the laws is restored.”
Robert Martin was a Lieutenant Colonel in the Confederacy’s Tenth Kentucky Cavalry and the leader of a group of spies who, dressed in civilian clothes, planned to slip into New York City, book rooms in 32 different hotels downtown, and at a coordinated time go from hotel to hotel setting fires. They purchased 144 vials of “Greek fire,” an incendiary liquid reputed to blaze uncontrollably when it came in contact with the air.
The objective of the plot was to distract the New York authorities so that the spies could meet up with their Northern sympathizers, seize the City’s treasury and arsenal, and free the Confederate prisoners of war being held in Fort Lafayette, a fortification built on an island in the Narrows of New York Harbor.
However, when Secretary of State William H. Seward got word of the plot on November 2nd, he notified New York’s Mayor Charles Gunther and sent thousands of federal troops to the City under the command of General Butler. Gunboats were deployed in the waters around Manhattan to support the soldiers. When no acts of sabotage had occurred by November 15th, General Butler decided the plot must have been abandoned and removed the troops from the City.
On Friday, November 25, 1864, the band of spies went ahead with their plot and the fires were set as planned apart from one. Apparently, Capt. Robert Cobb Kennedy, having set fires in three hotels, decided to set his final fire in Barnum’s Museum, where approximately 2,500 people were attending a play. As flames engulfed a staircase, pandemonium broke out in the crowded theater.
Fortunately, there was no loss of life and, while many properties were damaged, the City authorities got the fires under control. Reports of the plot were front page news in all the New York City newspapers the following day, and provided the public with descriptions of the perpetrators. Despite a massive manhunt, all eight managed to escape to Canada. Later, one of the spies, Robert Cobb Kennedy, was identified in a Detroit railway station, arrested and returned to New York. Kennedy was tried before a military commission, found guilty and hanged in Fort Lafayette on March 25, 1865.
Things went differently in the case of Confederate Lieutenant Colonel Robert Martin, who was arrested by the military authorities on November 27, 1865. He was confined in a prison at Louisville, Kentucky, and transferred by official military orders to Fort Lafayette for trial before a military commission in connection with the New York fire plot. Martin, through his counsel, Mr. Larocque, presented a petition of habeas corpus to the Supreme Court; Mr. Justice George G. Barnard granted the writ, and the proceedings came before Justice Leonard in chambers on December 14, 1865. On the return, Major General Hooker, commander of the military department that included New York State, stated that Martin was charged with the offenses of arson in the night time in the city of New York in November, 1864, with being within the federal lines, as a spy, and with disguising his rank and character as an officer in the confederate army by appearing in the dress of a citizen.
Jeremiah G. Larocque represented Robert Martin and Samuel G. Courtney (assistant U. S. district attorney) represented Major General Hooker.
In his opinion, Justice Leonard wrote:
The question is whether the prisoner is so held by lawful authority?
We look in vain for the authority on the face of the process, where in civil cases it ought to be fully disclosed. Indeed, there is no process at all by which he is detained. It is simply an order, in the briefest terms, directing Robert Martin to be transferred to General Hooker for trial. If the offenses exist, and are of a purely military character, I do not question the sufficiency of these orders under the code by which the arrest was made, and under which the military authorities propose to hold the prisoner for trial. The terms of proceeding for the arrest and trial of military offenders are not governed by the same rules for the protection of the rights and liberty of the person as are required in civil tribunals. The former is adopted from the necessity of the circumstances existing; often in camp; nearly always requiring summary action, and the exercise of large discretion.
The most direct language to express the intentions of the officer authorized by the usages of war among civilized nations to direct such momentous power must be considered sufficient, and not subject to criticism by civil jurists.
The offense of arson is one well known to the statutory law of every state, as well as at common law; but the offense of being a spy is not known to the civil or statutory law, and is one of a purely military character, cognizable only in time of war, and before a tribunal having its life, existence and authority created, continued and denned by purely military power.
I do not question that the crime of arson, even when committed in places remote from military camps, forts, arsenals, or other places directly connected with military operations, as in the case of the prisoner, may be a military offense, and as such cognizable, in time of war, before a military court, by the usage and law of nations. The protection of the government and of its individual members makes war, armies, and a submission to military rule in the community a necessity. When the necessity arises, the military power is paramount, and the laws are silent. But war is an anomalous condition. When peace is restored, or the necessity for military rule has terminated, the supremacy of the laws is restored.
During the late war for the suppression of the rebellion, it was deemed necessary by the military power to suspend the operation of the laws in the loyal states only so far as the privilege of the writ of habeas corpus was concerned. This measure was considered necessary in the exercise of the war power, for the public safety, and was, for the most part, cheerfully submitted to by the people engaged in the avocations of civil life, far removed from the active operations of armies in the field, abiding with confidence the restoration of their civil rights, reasonably abridged only during the national peril. Now peace has returned. The President has recalled, by his proclamation, the suspension of the writ of habeas corpus. The restoration of this writ was a public acknowledgment by the military as well as the civil chief of the United States, that peace is established, and that the civil authorities in the loyal states are required to resume the exercise of the duties and functions that pertain to the conditions of peace.
The military law and rule has now become, as before the war, subordinate to the civil. The necessity for the sudden arrest, the instant visitation of vengeance, or the punishment of offenses known and regulated by statutory law, by the swift and hasty trial before a court-martial or “military commission,” has ceased within the limits of the loyal states. I do not now refer to that large class of offenses coming under the constitutional provision, authorizing congress “to make rules for the government and regulation of the land and naval forces,” and “cases arising in the land and naval forces,” such as mutiny, desertion, etc. These offenses constitute an exception to the provision that “no person shall be held to answer for a capital or otherwise infamous crime, unless on a presentment or indictment of a grand jury.”
The act of congress creating “military commissions” seems to be a regulation of military tribunals by statute, and imposing a new name for courts-martial, and defining certain offenses, some of which were not previously regarded as military offenses. The act was designed for a time of war and great national peril. It cannot be supposed that congress designed that “military commissions” should supersede civil tribunals in a time of peace. It required the suspension of the habeas corpus to enable such a commission to try any offense in the midst of loyal states, where it was cognizable in the civil courts. Nothing less could have relieved the state courts from the performance of the duties imposed by law and statute, of taking cognizance of all offenders against the laws of the loyal states, and bringing them to trial in the state courts to the exclusion of every military tribunal, whether called a court-martial or “military commission.”
In respect to the crime of arson, mentioned in the return of the distinguished general who is here the respondent, its location and description brings it exactly within the definition of that offense in the first degree contained in the statutes of the state of New York. The offense was committed in that city, within the jurisdiction of the criminal courts of the state of New York. It is the duty of every Judge of the Supreme Court, and of every magistrate before whom a writ of habeas corpus can, by law, be made, returnable, to take cognizance of such a crime when presented on proper proof, and commit the alleged offender to be proceeded against by law in the courts of this state.
I see no reason why the prisoner should not be tried for the offense with which he is charged, if the evidence is sufficient to make it the duty of a grand jury to find an indictment against him.
Arson is not a crime for which the prisoner can be tried by a military court or commission, without a disregard of the provisions of the constitutions of both the states and the general government, securing a trial by jury. If the writ of habeas corpus were now suspended, the judiciary of the state might be powerless to prevent such an infraction of the constitution, but the President has deemed it now proper to withdraw the restriction upon the power of the courts to issue that writ, and to restore to the community in which we live, the full blessings of peace, and the protection of the law.
The other charge alleged against the prisoner at this present time falls into insignificance, when contrasted with the horrible crime of attempting, with other confederates, to destroy the city of New York by fire, in the night, without regard to the inevitable destruction of human life among the tens of thousands of non-combatants, including youth and old age, who were exposed to the merciless vengeance of this supposed fiend.
It appears that the prisoner was not taken in the act of committing the offense charged against him, of being a spy. He had returned within the lines of the confederate forces, or had otherwise escaped, so that he was not arrested till after the confederate armies had surrendered, been disbanded and sent to their homes, with the promise that they should not be further disturbed if they remained there and engaged in peaceful pursuits. The offense of being a spy is cognizable exclusively by military tribunals, under the law of nations. Perhaps it required an act of the supreme law-making power of the government to fix this offense and its penalty upon a person owing allegiance to the United States, although engaged in rebellion and in arms against the lawful authorities. But the congress has not so extended the liability to punishment against the spy as to increase the time for its infliction beyond the period recognized by the laws of war among civilized nations. What particular act the prisoner committed, indicating that he was lurking or acting as a spy, except the fact that he was here in citizen’s garb while holding an office in the armies of the rebellion, and attempting with others to set the city of New York on fire, is not specified.
I know of no case in modern history or in reports of cases decided in the courts, where any person has been held or tried as a spy who was not taken before he had returned from the territory held by his enemy, or who was not brought to trial and punishment during the existence of the war. The lives of all rebels are forfeited when taken in an act of war or insurrection, and history affords innumerable examples of punishment by death being inflicted after armed resistance had been suppressed. Their pardon is an act of clemency by the rightful authority whenever the supremacy of the laws has been restored, without conditions having been obtained by those in rebellion. It needs not any additional charge of having looked or acted as a spy to exact the life of an offender under these circumstances.
The restoration of peace absolved all offenses by the public enemy committed during the existence of the war, so far at least as the acts committed are sanctioned by the laws of war, except in the case of rebellion, in which case the crime of treason still remains, and may be punished.
I am unable to perceive how the prisoner can now be lawfully arraigned before a military tribunal for the offense of being a spy. There is no constitutional power to pass any law authorizing such a trial, conviction and punishment as that contemplated in the case of the prisoner, especially within the borders of a loyal state. If he were charged with treason, neither the military commission nor a court-martial could lawfully entertain the charge. The crime of treason or of being a spy is not one of those within the constitutional provision for passing laws regulating the army and navy.
The affidavit of General Hooker, although founded on information and belief, is sufficient ground for holding the prisoner under the custody of the civil authorities of the state, until the evidence in the possession of the general government or the military officers can be produced before a grand jury or a committing magistrate.
I shall direct the prisoner to be discharged from the custody of the respondent, General Hooker, and that he be committed to the warden of the city prison.
Howard’s Practice Reports in the Supreme Court and Court of Appeals of the State of New York.
Barbour’s Supreme Court Reports