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duty honestly, and according to his best skill and judgment, stands acquitted before God and man. If indeed a judge goes against law so grossly, so palpably as no imputable degree of folly can account for, and nothing but corruption, malice or wilful wrong can explain, and especially if circumstances prove such motives, he may be punished for the corruption, the malice, the wilful wrong; but not for the error: nor is he liable to action by the party grieved. And our form of government constituting it's respective functionaries judges of the law which is to guide their decisions, places all within the same reason, under the safeguard of the same rule. That in deciding and acting under the law in the present case, the plaintiff, who may think there was error, does not himself believe there was corruption or malice, I am confident. What? was it my malice or corruption which prompted the Governors and Cabildoes to keep these grounds clear of intrusion? Did my malice and corruption excite the people to rise, and stay the parricide hand uplifted to destroy their city, or the grand jury to present this violator of their laws? Was it my malice and corruption which penned the opinion of the Attorney General, and drew from him a confirmation, after two years of further consideration, and when I was retired from all public office? Was it my malice or corruption which dictated the unanimous advice of the heads of departments, when officially called on for consultation and advice? Was it my malice and corruption which procured the imme
diate thanks of the two houses of legislature of the ter*80 ritory of Orleans, and a renewal of the same thanks”for
the same interference, in their late vote of February last? Has it been my malice and corruption which has induced the national legislature, through five successive sessions, to be deaf to the doleful Jeremiads of the plaintiff, on his removal from his estate at New-Orleans? Have all these opinions then been honest, and mine alone malicious and corrupt? Or has there been a general combination of all the public functionaries Spanish, French and American, to oppress Mr. Livingston? No. They have done their duties, and his Declaration is a libel on all these functionaries. His counsel, indeed, has discovered [Opinions Lxxiv) that we should have had legal inquests taken, writs of enquiry formed, prosecutions for penalties, with all the et ceteras of the law. That is that we should be playing push-pin
with judges and lawyers, while Livingston was working double tides to drown the city. If a functionary of the highest trust, acting under every sanction which the constitution has provided for his aid and guide, and with the approbation, expressed or implied, of it’s highest councils, still acts on his own peril, the honours and offices of his country would be but snares to ruin him. It is not for me to enquire into the motives of the plaintiff in this action. I know that his understanding is of an order much too high to let him believe that he is to recover the value of the batture from me. To what indirect object he may squint with one eye, while the other looks at me, I do not pretend to say. But I do say, that if human reason is not mere illusion, and law a labyrinth without a clue, no error has been committed: and, recurring to the tenor of a long life of public service, against the charge of malice and corruption I stand conscious and erect.
TH: JEFFERSON. Manticello, july 31, 1810.
Page 4, line 24 of the Spanish quotation, last word of the said line, for “d,” read de. Page 60, line 8 of Latin quotation, for “sicutper,” read sicut per.
The opinion of Chief Justice Trighman of Pennsylvania, . delivered on the 22d November, 1813, on a Habeas Corpus, in the case of Charles Lockington, an alien enemy. Tilghman, C. J. From the return to this writ of Habeas Corpus, and the evidence which has been produced, it appears, that Charles Lockington, who is a subject of the British king, came into the United States before the declaration of war, and has never been naturalized. His business was connected with
commerce; and on the 18th of July, 1812, he reported himself
to john Smith, marshal of the district of Pennsylvania, as an alien, and British subject. On the 19th of March, 1813, he applied, as an alien enemy, for the marshal's passport, to repair to Lancaster, which was granted; and, at his own request, afterwards changed to Reading; in pursuance of an order issued from the office of the secretary of state, by which all alien enemies (with certain exceptions, not including the case of Mr. Lockington) were directed to retire, to a place above forty miles from tide water, to be designated by the marshal. On the 9th of the present month, the marshal found Mr. Lockington in this city, in violation of the order above mentioned; upon which he required him to retire to Reading. This being refused by Mr. Lockington, the marshal took him into his custody, and placed him, for safe keeping, in the debtor's apartment of the prison of the city and county of Philadelphia, until he could be conveyed, or would consent to retire, to Reading, or should be discharged by due course of law. The reason assigned by Lockington, for coming from Reading to Philadelphia, was the want of money to subsist in Reading; and he offered to return thither, if the marshal would furnish him with money. War having been declared by the congress of the United States, on the 18th day of june, 1812, proclamation of that event was made by the president on the day following. On the 7th day of july, in the same year, a notice was issued from the department of state, and published in those newspapers, in which the laws
of the United States are published, by which all British subjects were required to make report of themselves to the marshals of the districts, in which they resided; and at the same time the several marshals were directed to cause the laws, which relate to alien enemies, to be published, in order that such persons might be informed of the situation in which they stood. Those laws were, accordingly, published. On the 23d of February, 1813, an order was issued from the department of state, and published in the newspapers, by which “alien enemies, residing “ or being within forty miles of tide water, were required “forthwith to apply to the marshals of the states, or territories, “in which they respectively resided, for passports, to retire to “such places, beyond that distance from tide water, as should be “designated by the marshals;” subject to certain exceptions, not affecting the present case. At the same time the several marshals of the United States received instructions from the department of state, to take into custody, and convey to the places assigned to them, all persons to whom the said requisition was applicable, and who did not immediately conform to it. On the 15th of April, 1813, the several marshals were informed, by a notice from the department of state, that the president had appointed john Mason, esquire, commissary general for prisoners of war, “including the superintendance of alien enemies;” and that, in future, all letters and documents on those subjects, were to be addressed to that gentleman; and all instructions from him in relation to the same, were to be obeyed; unless otherwise directed from the department of state. On the 31st of May 1813, a circular letter, signed by john Mason, was addressed to the several marshals of the United States, and published in the newspapers. This letter was dated “Office of “Commissary General of Prisoners, Washington, May 31, “1813,” and is expressed in the following form: “The Presi“dent, being desirous of defining, more particularly, the treat“ment of alien enemies, and of extending as much indulgence “to them, as may be compatible with the precautions made ne“cessary by the present state of things, directs, that, in regard “to such as may be within your district, you will be governed “by the following rules. You will cause to be removed, as “heretofore prescribed, if not already done, under the former “orders from the department of state, all who are not females,
“or under eighteen years of age, who are not labourers, me“chanics, or manufacturers, arrived in the country previous to “the declaration of war, and actually employed in their several “vocations: subject, however, to the following modifications.” Then follow the modifications, none of which apply to Mr. Lockington.—These are all the facts of any importance on the present question. It has been contended, that the orders issued from the public offices, are not to be considered as the acts of the president; and that, if they are his acts, they are not authorised by law.— Both these objections shall be considered; but I shall first advert to the point, introduced in the suggestion filed by the marshal, which goes to the jurisdiction of a state judge, in cases like the present. It is supposed that the state judges have no authority to issue a writ of habeas corpus, because the power of declaring war being vested in the congress of the United States, all matters appertaining to that subject, must be under their control; that congress, if it had pleased them, might have considered alien enemies as prisoners of war, who are not entitled to the benefit of a writ of habeas corpus—and, finally, that as the laws of the United States have given to the state judges, a certain jurisdiction, with respect to alien enemies (which I shall have occasion to mention hereafter) but have not given to them authority to interpose by a writ of habeas corpus, that writ ought not to be issued. In answer to these suggestions, it is to be observed, that the authority of the state judges, in cases of habeas corpus, emanates from the several states, and not from the United States. In order to destroy their jurisdiction, therefore, it is necessary to shew, not that the United States have given them jurisdiction; but that congress possess, and have exercised, the power of taking away that jurisdiction, which the states have vested in their own judges. Our act of assembly directs, that, in all cases, “where any person, not being com“mitted or detained, for any criminal, or supposed criminal “matter, shall be confined or restrained of his liberty, under “any colour or pretence whatsoever,” he shall be entitled to a writ of habeas corpus. Now, it is no answer to this law, to say, that, being made before the present constitution of the United States was established, it could not be intended to apply to cases arising under the constitution. The people of Pennsyl