to that period and to recall the opinions which were then publicly maintained.* The whole subject, in fact, presented two aspects, namely: the effect of suspending the writ of habeas corpus, and the power to enforce martial law. It was asserted that the authority given to suspend the writ of habeas corpus during insurrection or invasion included the authority to disregard all the safeguards which the Bill of Rights has thrown around life, liberty, and property, and drew after it, as a necessary consequence, the power to make military arrests of citizens, and subject them to military trials and punishments. Even at the very outset a warning voice was raised against these monstrous conclusions. The venerable Horace Binney, the acknowledged leader of the American Bar, the associate and friend of all the greatest statesmen and judges of our earlier period, who, as a scholar in the Philadelphia High School, walked in public procession at the adoption of the United States Constitution, and then first felt, as he wrote to me, that he belonged to a nation, to something he could call his country,-Horace Binney wrote and published three essays in which he examined the subject of suspending the writ of habeas corpus in a most exhaustive manner, and showed, by a course of reasoning which amounts to absolute demonstration, that suspending the writ does not in the least affect the authority over arrests; that it does not enable Congress to allow, nor the Executive to make, arrests without legal cause or in an arbitrary manner; that it does not legalize seizures otherwise arbitrary, nor give any greater authority than that of detaining suspected persons in custody whom the government would else be obliged to bring to a speedy trial or to release on bail.

* A large volume was written and published called "The War Powers under the Constitution," a book maintaining sentiments suited, perhaps, to the autocratic despotism of Russia in its struggle with the Nihilists, but which are simply the negation of every fundamental principle of civil liberty and of private rights contained in our own political institutions.

These conclusions thus reached by Horace Binney were adopted by the Supreme Court in the Milligan Case (4 Wall., 2, 115), in the decision of which Judge Field concurred. The claim to exercise martial law against civilians was still more terrible. A most elaborate and exhaustive examination of the power to enforce martial law under or by virtue of the common law was made a few years ago by Lord Chief Justice Cockburn, one of the ablest chiefs who ever sat on the English Bench, and whose recent death is a great loss to the English administration of justice.* After a review of the precedents, ancient and modern, set forth in the wonderfully clear manner for which he was so pre-eminently distinguished, the Chief Justice reached the conclusion that under the common law there is no authority to enforce the martial law in any part of the British Empire where the common law prevails; in other words, the common law knows no such attribute of executive power. This conclusion the Supreme Court also adopted in the Milligan case. There can be no martial law in the United States except as an instrument and means of carrying on actual warfare, of conducting actual hostilities in regions occupied by the opposing armies. This doctrine. received the hearty approval of Judge Field, and has been on every occasion maintained by him. See especially his dissenting opinion in Beckwith vs. Bean, (8 Otto, 285-306.)

I must not pursue this analysis into any further detail. I have shown that his system of constitutional construction is consistent and complete; that it recognizes and maintains alike the lawful supremacy and exclusive authority of the General Government within the scope of powers delegated to it, and the just rights of individual.

*Charge of the Lord Chief Justice of England in the case of the Queen vs. Nelson and Brand, London, 1867, a case growing out of the negro insurrection, or rather tumult, in Jamaica, and the conduct of the Gov

ernor.

States; that it preserves unimpaired all the restrictions and limitations imposed upon the governmental action both of the States and of the nation; that it jealously guards the private and civil rights and immunities of persons; and that it respects and keeps in force the sacred principles of local self-government, and of civil and constitutional liberty, which underlie all our political institutions. From his opinions alone, a complete and consistent system of constitutional law might be composed, in which the American citizen would find a perfect text-book of political science, an exhaustive treatise upon the institutions of his country.

In conclusion, the proposition is, in my opinion, established by the foregoing sketch, that by his creative force as a state legislator, as a state judge, and, above all, as a member of the Supreme National Tribunal, Judge Field has, as much as any jurist of the present generation, impressed himself upon the jurisprudence of his country.