authorised certain courts and judges, upon complaints made against alien enemies, to have them apprehended, and brought before them; and, after hearing, to make such order as may be necessary, for carrying the regulations of the president into effect; there is not wanting strong colour for an argument, that the only manner of executing the regulations, is by complaint to a court, or judge. This is a point well worthy of serious consideration. I have considered it attentively; and I shall give the reasons, which have induced me to conclude, that, notwithstanding the second section, the president was authorised to make an order for the removal of the alien enemy by the marshal, in the first instance. It is never to be forgotten, that the main object of the law is, to provide for the safety of the country, from enemies who are suffered to remain within it. In order to effect this safety, it might be necessary to act on sudden emergencies.It is well known, that the United States are exposed to great danger, in a war with an enemy who commands the sea. Bounded by the Atlantic ocean to a great extent, with numerous bays and navigable rivers, penetrating the very heart of the country; there is no knowing when, or where, the attack may be made. Without incurring the charge then of undue severity, prudence might require, that alien enemies residing in large cities, should be removed with more expedition than the formalities of law admit. The president being best acquainted with the danger to be apprehended, is best able to judge of the emergency which might render such measures necessary. Accordingly we find that the powers vested in him are expressed in the most comprehensive terms. He is to make any regulations which he may think necessary for the public safety, so far as concerns the treatment of alien enemies. It is certain, that these powers create a most extensive influence, which is subject to great abuse: but that was a matter for the consideration of those who made the law, and must have no weight with the judge who expounds it. The truth is, that, among the many evils of war, it is not the least, to a people who wish to preserve their freedom, that, from necessity, the hands of the executive power must be made strong, or the safety of the nation will be endangered.

But, it may be asked, what is the use of the provision in the second section, concerning courts and judges, if the regulations

of the president may be executed, without resorting to them? The answer is, that the use is great. In the first place, where the marshal is ordered to make the removal, he is at liberty to apply to the judges; and there may arise cases, in which he will find it prudent to strengthen himself by the judicial authority. But besides, many regulations may be made, which contain no order for the marshal to act, or which may direct him to proceed by way of complaint to the judges. If the regulation in question had simply been, that alien enemies should retire to a place to be appointed by the marshal, any citizen might have complained of an alien enemy, who declined to comply; and a judge might have made and enforced an order for his removal. There may be various regulations for the general conduct of alien enemies, without pointing out the mode of carrying them into effect: and in all such cases, the courts may take cognizance of them. There may be regulations, which barely order that certain things shall be done, or shall not be done, without defining the penalty in case of disobedience. In such cases, the judges to whom complaint is made are vested with a considerable discretion. They may, according to the nature of the case, either direct the alien enemy to be removed out of the United States, or to give security for his good behaviour, or to be imprisoned, until the order of the president is complied with. It would be a waste of time to point out all the uses of this provision, respecting the power of courts and judges. To those, who reflect on the subject, many more than I have mentioned, will suggest themselves. It is worthy of remark, that in the third section of the act, it appears, that the president may, by his warrant, directed to the marshal, order him to apprehend any alien enemy, and remove him out of the territory of the United States. Now, it is difficult to conceive a reason, why the president should be authorised to remove any alien enemy out of the country, without assigning a cause; and yet that he should not be permitted to direct, that those of a certain description should repair to a certain place within the United States, and in case of a refusal, that the marshal should remove them. The particular reason assigned by Mr. Lockington, for not complying with the order of the president, I cannot but very much regret. But, although it absolves him from the charge of obstinate and perverse disobedience, yet, it can have no effect on my judg

ment, as it is a subject on which I have no power to act. I am not without hopes, however, that this public discussion may bring to the mind both of our own and the British government, a matter which seems not to have been attended to: that is to say, that persons, detained in a foreign land, cut off from their funds, and without the opportunity of pursuing their usual occupations, may be involved in distress, which demands relief.

But, supposing the president had power to make the regulation under bich the marshal has acted, it is denied that he ever did make it. The act of congress requires, that the president should establish regulations, by his proclamation, or other pubhe act. He has made no proclamation; but has he not made a public act? The first order was issued from the department of state, although it does not appear to be signed by the secretary of state, nor is the name of the president mentioned in it. The attorney for the United States says that the orders of the president are usually communicated in this form. If the matter rested on this notification, I should be somewhat at a loss what to think of it. The president could not transfer his power to the secretary of state; and as there is no mention of his name, some evidence might be necessary, to show that it was really his order issued from the department of state. But the order issued from the commissary general of prisoners, puts the matter out of doubt; for the regulations there established which refer to and adopt the former orders from the department of state, are expressly declared to be the act of the president, although they are not signed by him, but by the commissary. This is sufficient to satisfy me. Being published as the orders of the president, signed by an officer of high trust, and never disavowed, I consider them as the public acts of the president.

I must add a few words, with respect to the return to this habeas corpus. The writ is directed to Joseph Cornman, keeper of the debtor's apartment of the prison of the city and county of Philadelphia, who made return, that he detained Mr. Lockington by virtue of a written order from John Smith, Esq., marshal of this district, by which he was commanded to keep the said Mr. Lockington, who had violated the orders of the president, &c. until he should be discharged by law. Connected with this return, I must take the suggestion presented by the marshal, and verified by his oath; by which it appears, that he placed

Mr. Lockington in the debtor's apartment, until he could be conveyed, or would voluntarily go, to Reading. The marshal's order to the keeper of the prison has, at first view, somewhat the air of a judicial act, for which he certainly can have no authority. But the peculiar circumstances of the United States, with regard to prisons, will serve to explain the matter. They have no prisons of their own, and make use of the state prisons, by permission of the several States. Although the marshal held Mr. Lockington in custody, in a ministerial capacity, it might be necessary for him, to give the keeper of the prison some document to authorise his detaining him. So that I consider Mr. Lockington as, in fact, in custody of the marshal. Being of opinion that the marshal had a right to take him into custody, and place him in the debtor's apartment for safe keeping, until he could conveniently be removed to Reading, I must order, that Charles Lockington be remanded to the custody of the keeper of the debtor's apartment.

The prisoner was, accordingly, remanded.

On the 1st of January 1814, the alien, Charles Lockington, having been brought by a new writ of Habeas Corpus before the Supreme Court of Pennsylvania in Bank, on a full argument, by Mr. Dallas, district attorney on the one side, and Messrs. Hare and Condy, on the other, the above decision of the Chief Justice was unanimously confirmed.