Colonel Frederic Winkler Mollus Papers #2.


WAR QUESTIONS IN THE SUPREME COURT OF WISCONSIN.
By BVT. BRIG. GEN. IF. C. WINKLER, U. S. V. [Read November 2,1892]

        It was not to the soldier alone, not to those whom the exigencies of the day transformed into soldiers, alone, that the revolt of 1861 brought new duties. The wrenching of the bonds of long-continued peace invaded every branch and department of government with new problems. It fairly took possession of the legislative as well as the executive, and it rolled ardent contentions over questions of right into the forum of the judiciary. A grouping of the great questions that arose out of the relations of war and came before the courts of the country for determination, with a discussion of the attention they received and the disposition that was made of them, might indeed be the subject of the greatest interest, but it is too broad a theme for me. I propose only, as briefly as I can, to present, to-night, what the Supreme Court of the State of Wisconsin was called upon to do, what it, did in reference to problems of the war.

        1.  A special session of the legislature of the State of Wisconsin, called by Governor Randall for the purpose of taking measures for the public defense, convened at the@ state capitol in May, 1861. Troops were being raised. Troops had to be raised. The state was the instrumentality for enlistment and organization. Money was needed.

159

There was none in the treasury. There was no resource but to borrow. An act was passed. It was approved May 27th, 1861. It provided for an issue of state bonds to the amount of $1,000,000. The legislature adjourned. Could the money be raised?
        The public credit in those days, even of the National Government, much more that of the states, especially the new western states, was very far from commanding that unquestioned respect which is accorded to it to-day. It "Can the money be was a question, and a serious one, raised?" Back of that was the question, "Are the bonds valid?
        The constitution of the state prohibits the contracting of a state debt except in cases specifically authorized. It authorized the borrowing of money" to repel invasion, suppress insurrection or defend the state in time of war. It was claimed that the rebellion which sought a dismemberment of the Union was not a war within the meaning of this provision. At least there was doubt. The timidity of capital is proverbial. A million dollars was an enormous sum of money for the State of Wisconsin to raise in that day. With a substantial doubt as to the constitutionality of their issue, there was no possibility of negotiating the bonds.
        The Governor appealed to the judges of the Supreme Court in this extraordinary emergency to aid him by a public expression of their opinion. It was irregular. It is contrary to precedent, contrary to usage, yes, contrary to all propriety I may say, that judges should extra-judicially express their opinion upon a public question which may come before them for adjudication. But in that crisis of 1861 common scruples could not stand. The exigency was peremptory. Immediate action was demanded. The judges then wrote to the Governor the following letter:

160

                                                                                                STATE OF WISCONSIN, SUPREME COURT,
                                                                                                CLERK'S OFFICE, MADISON, June 5th, 1861.
                                                                                                His EXCELLENCY ALEX. W. RANDALL,

Governor of Wisconsin.

        SIR: We are in receipt of your communication of the 4th inst. asking our opinion as to the constitutionality of Chapter 239 of the General Laws of 1861, entitled "An Act to provide for the defense of the state and to aid in enforcing the laws and maintaining the authority of the Federal Government," and Chapter 13, of the extra session held in May, 1861, entitled "An Act to provide for borrowing money to repel invasion, suppress insurrection and defend the state in time of war," and as to whether bonds, issued under the above acts and in conformity to their provisions, would be valid and binding against the state.
        Your Excellency is pleased to intimate that it has become a necessity in the present exigencies of the state and country to appeal to us for an opinion upon the above question. Yielding to this emergency, we have felt it to be our duty to give you our opinion upon the questions suggested in your communication, and we would therefore state that we have considered the above mentioned laws, and from the examination we have given them we entertain no doubt as to their constitutionality, and we are of the opinion that the bonds issued in conformity to their provisions will be valid and binding upon the State of Wisconsin.
        Respectfully yours,

                                                                                                    LUTHER S. DIXON, Chief justice.
                                                                                                    O. COLE, Associate justice.

P. S. Mr. Justice Paine is at present in Milwaukee and has had no opportunity of acting upon the subject-matter of your communication.

                                                                                                    O. COLE.

        By the aid of this opinion the bonds were negotiated, and to the credit of the State of Wisconsin be it said that no one within her borders ever raised a question as to their validity; nor did the people ever cease to honor the distinguished judges who in that crucial hour disregarded punctilio and obeyed the behests of patriotism.

        2.  The first case presenting a war issue that came

161

before our Supreme Court was that of Gregg, reported in 15 Wis., 479. It was the case of a minor who had, without the consent of his parents or guardian, enlisted in the 20th Wisconsin. His father now made application to the court for a writ of habeas corpus looking to the discharge of the son from the service. But the court held that under the laws then in force a boy over eighteen could make a. valid contract of enlistment without parental consent.

        3.  Next came the case of Higgins, 16 Wis., 351. Here a boy less than seventeen years of age had been enlisted in the 1st Wisconsin Cavalry without the knowledge or consent of his parents. The father brought habeas corpus. It was shown that the recruiting officer war, informed of the correct age of the boy at the time of enlistment. The act of congress in force declared in terms that no person under the age of eighteen shall be mustered into the United States service." The court held that he must be discharged.

        4.  A question of supreme importance came before the court in the case of Nicholas Kemp, 16 Wis., 359, in the last days of l862. It was a question upon the fundamental law, upon the constitution of the United States. It related to the most sacred of subjects, the liberty of the citizen. It was a question of the right of the el en on the one hand, the power of the government on the other.
        From the days of Magna Carta the writ of habeas corpus has been deemed the most valuable immunity of the citizen, both in Great Britain and in all lands that have borrowed their institutions and laws from that country. It is this writ that establishes right above, might. It deprives power of its influence where it is not linked with right. It is simply the means by which a person who is restrained of his liberty can at any time be brought before a judicial magistrate or tribunal in order.

162

that the cause of his imprisonment or restraint maybe inquired into, and that it may be judicially determined whether it is warranted by the law of the land. Generally speaking the citizen is entitled to his liberty. He who restrains it must show warrant justifying the restraint. The writ of habeas corpus is the judicial instrumentality which calls upon him for this showing. Hence, its very great importance. Take it away, and the unfortunate who finds himself in the hands of a superior power has no means of appealing to a court of justice to determine whether his imprisonment is authorized or whether he is held in defiance of the laws and of his right. It is essential to the first principles of freedom that this right should exist.
        Yet it is admitted that there may be times of great public danger, when as against arrests made by the government the privilege may not be invoked. The constitution of the United States in Section 9, of Article I, has the following provision: "The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it."
        From the outbreak of the rebellion it had been a question whether the President of the United States, as commander-in-chief of its militant forces, had the right to suspend the privilege of the write and to authorize military officers to refuse it obedience when issued.
        By au order dated the 27th of April, 1861, President Lincoln had attempted to do this in the State of Maryland, or along the routes which troops had to take between Philadelphia and Washington. In the month of May one John Merriman, who was enlisting recruits for the rebel army in Baltimore, was arrested by the military authorize and lodged in Fort McHenry. A writ of

163

habeas corpus was issued to Gen. Cadwallader, then in command, by Chief justice Taney of the Supreme Court of the United States, calling upon him to justify the arrest of Merriman. Gen. Cadwallader stated the treasonable action of Merriman on account of which he had been arrested and was detained, but declined to produce his person, claiming the suspension of the writ under the order of the President. The Chief Justice issued an, ineffectual attachment against Gen. Cadwallader, and wrote an elaborate opinion holding that the President had no authority to suspend the writ, and that in the absence of action by Congress to that effect, disobedience to the writ under any circumstances was an unjustifiable infraction of the constitution and the laws. This led at once to a much heated discussion. Mr. Bates, the Attorney General of the United States, in an official letter to the President, took the extremely opposite view, holding that the President had the right to suspend the writ in all cases of arrests made by his authority when in case of rebellion the public safety, in his opinion, required it. The administration acted on the advice of the attorney General, and the President from time to time made orders for the suspension of the writ, applying to different places or circumstances.
        In the case mentioned the question came before the Supreme Court of Wisconsin.
        Nicholas Kemp, and a number of others, were arrested by the military authorities on the 12th of November, 1862, for forcible resistance to the draft in Ozaukee County. They were afterwards confined at Camp Randall. A writ of habeas corpus having been issued to Brig. Gen. Elliott, commanding the department of the Northwest, by our Supreme Court, requiring him to produce their persons and warrant for their detention, he

164

sent to the clerk of the court a return, stating the ground of their arrest, claiming a suspension of the writ of habeas corpus under General Orders No. 141, issued by the President the 24th of September, 1862, and declining to re ease them from military custody.
        The order of the President referred to contained the following provisions:
        “First. That during the existing insurrection, and as a necessary measure for suppressing the same, all rebels and insurgents, their aiders and abettors, within the United States, and all persons discouraging volunteer enlistments, resisting militia drafts, or guilty of any disloyal practice affording aid and comfort to rebels against the authority of the United States, shall be subject to martial law, and liable to trial and punishment by court or, military commissions.
        “Second. That the writ of habeas corpus is suspended in respect to all persons arrested, or who are now, or hereafter during the rebellion shall be imprisoned in any fort, camp, arsenal, military prison, or other place of confinement, by any military authority or by sentence of any court martial, or military commission.
        The court approached the case with all the care which its great importance demanded. Each of the three judges delivered a separate opinion. The court concluded that upon t he facts before it the detention of the prisoner was not justified. It was held that the suspension of the writ under Section 9 of the First Article of the Constitution was a legislative, not an executive act, that it required an act of Congress to give it effect.
        A distinction, which is not alluded to, and does not seem to be recognized, in Chief justice Taney's decision in Merriman case, was insisted upon with much force and clearness, between a general suspension, a de jure suspension

165

I might say, of the privilege of the writ, and a de facto suspension which necessarily takes place on the actual theatre of war and its immediate surroundings, where martial law rules the hour and civil tribunals must be hushed into silence. In the latter case it was admitted that disregard of the writ by a military officer under the authority of the commander-in-chief of the armies would be justified. Time forbids my going more deeply into this very interesting discussion.
        Coming from a court of unquestionable loyalty as well as recognized ability, the decision could not fail to produce a great effect upon the country. It contributed largely in inducing Congress at its next session to pass an act for the suspension of the writ.

        5.  At a special session in 1862, the legislature of the state had passed an act allowing Wisconsin soldiers who were qualified electors to cast their votes in the field. At the January term, 1863, the constitutionality of this enactment was challenged in the Supreme Court in the case of The State on the relation of Chandlerrs. Main, 16 Wis., 398.
        The court, in a very elaborate and able opinion by. Mr. justice Paine, sustained the validity of the law, thereby assuring to the citizen, under arms to avert a dire catastrophe to his country, the unimpaired exercise of the dearest right of the American freeman.

        6.  At the same term a question deeply affecting the reinforcement of the army at the front came before the court. A draft to fill quotas had been made. The drafted men were in camp. Application was made for a habeas corpus for their release. It was claimed that the draft was without color of legal authority under any statute or law of this state or of the United States, and altogether arbitrary and unlawful." In re Griner, 16 Wis., 423.

166

        This claim had been very loudly made in the press and by speech among those who, to speak mildly, were lukewarm in support of the war. It now came before the court and was there represented by no less able an advocate than Mr. B. G. Ryan.
        The court heard the claim and promptly refuted it. An admirable opinion of Mr. justice Cole fully vindicates the legislation under which the draft was had, and the rules and regulations adopted by the President which prescribed the details by which it was executed.

        7.  The next case was In re Wehlitz, 16 Wis., 448. Is a resident alien, who has declared his intention to become a citizen of the United States, is a qualified elector in the state and has actually exercised the right of suffrage, liable to draft? Our Supreme Court answered the affirmative, holding him to be a citizen of the state of Wisconsin though not a citizen of the United States. It is with regret that we have to admit that our government was not able consistently to enforce this very just position. It makes us blush for the folly of conferring the right of suffrage where allegiance is not due.

        8.  It seems almost like a parody of any just system of policy or legislation that in a later case, In re Conway, 17 Wis., 527, the court was compelled to decide that while the resident alien who had simply declared his intention to become a citizen of the United States, who was entitled to vote and had voted, was subject to draft, as decided in the Weblitz case, yet his son who had been brought here in infancy, had lived here ever since and had voted, could not be drafted. He was not entitled to vote. His votes were illegal. He might be punished for illegal voting. But he was an alien. From all duties of citizen he was exempt. The court had to interpret the law as it found it. Its crudities it could not control.

167

        9.  The case of Richard Oliver, 17 Wis., 681, brings us back once more to the question of the habeas corpus. Young Oliver, in whose behalf a petition had been presented, had been enlisted in the army. He was less than eighteen years of age. The merits of the application therefore came strictly within the case of Higgins already referred to. But in the meantime the act of Congress approved March 3d, 1863, authorizing the President of the United States to suspend the writ of habeas corpus, had been passed, and the President, in pursuance of its provisions, had issued his proclamation dated September 15th, 1863, suspending the privilege of the writ of habeas corpus, in cases where persons were held under the command of the government as prisoners or as soldiers. It was contended that the act and the proclamation under it were invalid. The argument was that the suspension of the writ could only be accomplished by a direct act of Congress, that the act in question did not of itself suspend it, but sought to delegate the power of suspension to the President. Mr. justice Paine, in delivering the opinion of the court, admitted that the wording of the act afforded much room for the criticism, but concluded that in substance the act itself suspended the privilege of the writ, leaving it to the President to say in what cases the suspension should be insisted on. With this interpretation the act and the proclamation were sustained and the writ was refused.

        10.  In the case of Breitenbach v. Turner, 18 Wis., 140, the financial legislation to which resort had been had to defray the enormous expenses of the war was brought before the court. The question was whether Congress had the power to make the treasury notes of the United States a legal tender for the payment of preexisting debts. The case presenting this important question involved the

168

petty sum of two hundred dollars. Our court held the act valid and that the debt could be discharged by payment in legal tender notes. This question has since then had a somewhat remarkable course in the Supreme Court of the- United States, but its final decision was the same as that of our court in 1864.

        11.  Brodhead v. The City of Milwaukee, 19 Wis., 624-, brought an important, and from a legal standpoint, a very interesting question before the Supreme Court. It was as to the constitutionality of an act of the legislature of the state authorizing cities, villages and towns to raise money by taxation for the purpose of paying bounties to volunteers, so as to fill the quotas assigned to the respective localities under calls by the President for troops. Does the power of municipal taxation extend to such a purpose? That was the chief question involved, although there were minor ones also upon particular features of the law in question. The court sustained the act and held the taxes which had been levied under it valid. Further resort to it was fortunately not -needed as the war had come to an end.

        12.  But I am not at the end of my list of decisions. A most important one remains to claim our attention. The case of Kemp, you will remember, rose out of the riotous resistance to the draft in Ozaukee county in 1862. The court had decided that detention of Kemp as a prisoner in Camp Randall was illegal. The arrests had occurred in November, 1862. The execution of the draft and the measures taken of enforcing it were under the direction of the Governor of the state. The Honorable Edward Salomon was Governor. After his term of office expired John Druecker, one of the prisoners, brought suit against the Governor for damages for an unlawful arrest and false imprisonment.

169

        It was a test case. The arrests had been quite numerous, and if this suit had proved successful many others would have followed in its wake. The case came to trial in October, 1865, in the city of Milwaukee, before the Honorable Arthur McArthur, Circuit judge, and a jury. The full extent of the riot, or insurrection against the enforcement of the laws for the recruitment of our armies, as it was claimed to be, and the necessity of resorting to military force for its suppression, were here first given in evidence. The trial was attended by a large concourse of people. It appeared that the arrest had been made on the 13th of November, 1862; that after being detained under the Governor for twelve days the plaintiff was delivered to the United States military commander, and that the Governor had no further control over him.
        After the end of along and patient investigation judge McArthur, in dignified and manly language, taking the form of a charge to the jury, gave his opinion that the plaintiff could not recover. A few extracts from this able, opinion, in as much as it is found only in the ephemeral publications of the day, I beg leave to subjoin:
        " When riot is to be subdued," says the eloquent judge, " the only means, at once lawful and imperative, seem in times of quiet unusual and severe. Authority has "but one virtue, and that is the promptness and decision with which responsibility is assumed. In such a crisis there is no time to hunt up precedents. Hesitation is synonymous with anarchy. Action is demanded to prevent threatened ruin and bloodshed. So that the appropriate remedies for such an evil belong to that violent class which inflame the system in order to eradicate the disease. Coercion is neither optional nor avoidable. It is the only resource of legitimate authority, and the faithful executive who under such trying and

170

overwhelming necessities is influenced only by considerations of public duty, cannot be followed by vexatious litigation for error of judgment. I have listened with emotion to the impressive and eloquent observations of the distinguished counsel for the plaintiffs the Honorable Harlow S. Orton, now one of the judges of the Supreme Court on the danger of irresponsible power and on the necessity of protecting the citizen from its oppressions. These sentiments are part of our education and habits, and as we are almost the only instance of a powerful government with a well-defined bill of personal liberty, of all others we should be the most anxious to preserve it; and it is gratifying that animated addresses on this subject are always vindicated by the most popular favor and affection of the people. We should not, however, forget that public right and liberty are just as sacred as that claimed for the individual, and when these are threatened with tumult and violence, the magistrate who averts the evil is a public benefactor, and conserves all rights, both of the state and of the citizen, and liberty and law are preserved for the benefit of all alike.” He then points out that in conformity with the act of Congress known as the conscription act of 1862, which, as we have seen, our Supreme Court had held valid in the Griner case, the President had conferred the duty of enforcing the conscription under it upon the Governor of the state, that actual and threatened violence and armed resistance had justified a resort to military interference, that the arrests and imprisonments in question were made in overcoming the resistance and enforcing the law by military force, and held that for acts thus done in the discharge of duty without malice to the plaintiff, the Governor could not be held liable in an action for damages.

171

        The case was taken to the Supreme Court by appeal, and is reported in 21 Wis., 621. The decision of judge McArthur was there unanimously affirmed in an elaborate opinion delivered by Mr. justice Downer.
        This, so far as my research has extended, is the last of what I should call distinctively "war cases" that came before our Supreme Court, although there were others where property rights more or less affected by questions arising out of the war were passed upon. But of these it is not my purpose to speak.
        Companions: Of the distinguished jurists who held seats upon the Supreme Bench during the period in which the decisions alluded to were rendered one only survives. He is our honored guest this evening. In 1855 at the age of 35 he took his place in that tribunal and held it continuously until January, 1892, serving during the last twelve years as its Chief justice. Of refined culture, of thorough learning, of patient urbanity, of that serene calm of mind and temper which above all things adorns the judge he has brought to the discharge of his important duties an industry and fidelity that have never been excelled. During all the long years of his service, I doubt whether a single case has come before the court in which he has not taken part, and to which he has not given his personal careful research. The Loyal Legion delights to do honor to faithful public service wherever it is found. Let us then honor the court which in the turmoil of civil war did not swerve from its anchorage, but with steady firmness upheld the freedom of the citizen on the one hand, the right of the government on the other. Let us do honor to Chief justice Orsamus Cole, who honors us with his presence. May sunshine attend his remaining years, while he enjoys the "otium cum dignitate" which he so well deserves.

Volume 4, Milwaukee, Burdick, Armitage & Allen, 1896. College of St. Thomas Library. E464 M599W V2