3d. That the production of said deserter in court would be inconsistent with, and in violation of the duty of the respondent as Provost Marshal, and that the said deserter is now held under authority of the United States. For these reasons, and without intending any disrespect to the honorable judge who issued process, he declines to produce said deserter, or to subject him to the process of the court. To the foregoing all other material facts may be added.

Such return having been made, the jurisdiction of the State court over that case ceases. If the State court shall proceed with the case and make any formal judgment in it, except that of dismissal, one of two courses must be taken. (1) The case may be carried up, by appeal or otherwise, to the highest court of the State, and removed therefrom by writ of error to the Supreme Court; or, (2) the judge may be personally dealt with in accordance with law, and with such instructions as may hereafter be issued in each case.

WILLIAM WHITING,

Solicitor of the War Department.

NOTE A. -For those who desire to examine the practice and authorities on the question whether a government has the right to treat its citizens while engaged in civil war, as belligerents or as subjects, reference may be had to the following, viz.: (Stephens') Blackstone's Com., Vol. 4, p. 286. Marten's Essai concernant les Armateurs, ch. 2, sect. 11. See 17 Geo. III. ch. 9 (1777). Pickering's Statutes, Vol. 31, p. 312. See President's Proclamation, April 19, 1861. U. S. Stat. at Large, 1861, App. p. ii. See charge of Nelson, J., in the report of the trial of the officers, &c., of The Savannah, p. 371. In this case the rebel privateer put in as a defence his commission to cruise under the Confederate flag; and the same defence was made before the United States Court in Philadelphia by other persons indicted for piracy. It was held in both of these tribunals, that they must follow the decision of the executive and legislative departments in determining the political status of the Confederate States; and, that the exercise of belligerent rights by the Federal Government did not imply any waiver or renunciation of its sovereign or municipal rights, or rights to hold as subjects the belligerent inhabitants of the seceded States. See the report of Smith's Trial, p. 96. The pirates tried in New York were not convicted. Those who were convicted in Philadelphia were not sentenced, but, by order of the Secretary of State (January 31, 1862), were sent to a military prison, to be exchanged as prisoners of war this being done to avoid threatened retaliation.

See also authorities cited in Chapter II. p. 44.

It has been decided since the tenth edition was in type, that citizens of States in rebellion are considered as public enemies, and are not entitled to sue in the courts of the United States, by Nelson, J., U. S. C. C., of Minnesota. See Nash v. Dayton. A similar decision has been made by the Court of Appeals in Kentucky, and has been approved by Governor Bramlette. (See his Message to the House of Representatives, February 13, 1864.) Note to Forty-third Edition. Nor can public enemies appear as claimants in a case of prizc. (United States v. The Isaac Hemmett, 10 Pits. Leg. Jour., 97; United States v. The Alleghany, Ib. 276; United States v. One Hundred Barrels of Cement, 12 Am. L. R. 735.) In Mrs. Alexander's Cotton case, the Supreme Court say, 1864-5 (2 Wallace, 421), “A public enemy can have no standing in any court of the United States so long as that relation exists." See Appendix, p. 532.

KEES v. TOD.

This case has been decided in Ohio since the seventh edition of the "War Powers" went to press :

John W. Kees vs. David Tod and others, Pickaway County Common Pleas; civil action. On petition to remove the case, for trial, to the United States Circuit Court.

The defendants, under the Act of Congress of March 3, 1863, present a sworn petition, stating the facts, clearly within the Act, and tendering surety as provided by the Act.

Section 4 of the Act provides, "That any order of the President, or under his authority, made at any time during the existence of the present rebellion, shall be a defence in all courts to any action or prosecution, civil or criminal, pending, or to be commenced, for any search or seizure, arrest or imprisonment, made, done, or committed, or acts omitted to be done, under and by virtue of such order, or under color of any law of Congress, and such defence may be made by special plea, or under the general issue."

Section 5 provides, "That if any suit or prosecution, civil or criminal, has been or shall be commenced in any State court against any officer civil or military, or against any other person, for any arrest or imprisonment made, or other trespasses or wrongs done or committed, or any act omitted to be done. at any time during the present rebellion, by virtue or under color of any authority derived from or exercised by or under the President of the United States, or any Act of Congress, and the defendant shall, at the time of entering his appearance in such court, or, if such appearance shall have been entered before the passage of this Act, then at the next session of the court in which such suit or prosecution is pending, file a petition, stating the facts, and verified by affidavit, for the removal of the cause for trial at the next Circuit Court of the United States, to be holden in the district where the suit is pending, and offer good and sufficient surety for his filing in such court, on the first day of its session, copies of such process or proceedings against him, and also for his appearing in such court, and entering special bail in the cause, if special bail was originally required therein, it shall be the duty of the State court to accept the surety, and proceed no further in the cause or prosecution, and the bail that shall have been originally taken shall be discharged, and such copies being filed, as aforesaid, in such court of the United States, the cause shall proceed therein in the same manner as if it had been brought in said court by original process, whatever may be the amount in dispute or the damages claimed, or whatever the citizenship of the parties, any former law to the contrary notwithstanding.

OPINION OF JUDGE DICKEY.

The plaintiff brought his action in this court to recover damages for an alleged trespass and false imprisonment by the defendants, and filed his petition

on the 14th of September, 1863, and caused summons to be issued and served, &c. In his petition he alleges that the defendants, on the 29th day of June, 1862, at the county of Pickaway, unlawfully and maliciously assaulted the plaintiff, and that the defendants, Bliss, Goodell, and Dougherty, at the instance and by the procurement of the defendants, Tod and Gregg, seized and laid hold of the plaintiff, and then and there unlawfully and maliciously, and without any reasonable and probable cause, arrested and imprisoned said plaintiff, with intention of having him carried out of the State of Ohio contrary to the laws thereof, and that defendants Scott and Goodell, then and there, at the instance and by the procurement of the said Tod, Dougherty, and Gregg, forced and compelled the said plaintiff to go from and out of his house, situate and being in said county of Pickaway, into the public street, and so on; charging that they compelled him to go out of the State of Ohio, to the military prison, called the "Old Capitol Prison,' Old Capitol Prison," in Washington City, and there the defendants caused him to be unlawfully and maliciously, and against his will, without reasonable or probable cause, imprisoned for seventeen days, &c., to his damage, $30,000.

On the 27th of October, 1863, defendants Tod, Gregg, and Dougherty, the only defendants served with process, filed their petitions against the plaintiff Kees, stating, in substance, that the plaintiff Kees, on the 12th of September, 1863, filed his petition in the court, and commenced a civil action for the wrongs, injuries, &c., as stated in plaintiff's petition, making reference to it for particulars, and then going on to set forth that having been summoned, they come and enter their appearance to the plaintiff's action, and state, that, so far as the arrest, imprisonment, wrongs, &c., were committed, as alleged in plaintiff's petition, the same was done during the present rebellion, about the 29th day of June, 1862, and prior to the 3d day of March, 1863, by virtue and under color of authority derived from and exercised by the President of the United States, and by virtue of and under an order issued from the War Department of the United States (a copy of which order is given).

The defendants then, after a full statement of the facts as they claim them, relating to the authority, &c., further state, that they, desiring to have the case removed to the next Circuit Court of the United States, to be holden at Cincinnati, &c., come and offer good and sufficient surety, &c., and then pray this court to accept the surety and proceed no further in the case, and to make such further order as may be necessary for the removal of the case to the Circuit Court of the United States.

The following is the order of the War Department referred to :

SIR: Proceed, with one assistant, by first train, to Circleville, in the State of Ohio, arrest there, or wherever else he may be found, John W. Kees, editor and publisher of the "Circleville Watchman," and deliver him to the commandant at Camp Chase, permitting no communication with him except by yourself, and your subordinates charged with his safe keeping, and, if you think fit, by his family in your presence. Examine all papers, private or otherwise,

found at the office of the paper, the residence of Kees, or on his person, and bring with you to the department all that may be found of a treasonable or suspicious nature, as well as a copy of each issue of the "Watchman" during the last four months. Close the office, locking up the presses, type, paper, and other material found therein, and place it in charge of a discreet and trustworthy person, who will see that it is safely kept. If you think any further aid will be necessary, call on Governor Tod, at Columbus, who will be requested to give you such information and aid as you may think needful in enabling you to fulfil your duty.

Let this order be executed promptly, discreetly, and quietly; and, when executed, make full report of your doings hereunder to this department. By order of the Secretary of War.

(Signed)

C. P. WOLCOTT, Assistant Secretary of War.

It was set forth in defendant's petition that this order was addressed to Wm. H. Scott, Washington, D. C., and delivered to him, and that he proceeded to its execution, and called at the Executive office, in Columbus, was given information in regard to Kees, his paper, and persons, to call on at Circleville, &c., by one of the Governor's staff; and that Scott did proceed to Circleville, and arrest Kees under and by virtue of the command of the order referred to, &c. And the petition of the defendant, David Tod, further states, that about the 6th of June, 1862, prior to the issuing of the order, the Circleville Watchman of that date, edited and published by Kees, was mailed to him as Governor, containing marked editorial articles, highly libellous, inflammatory, and treasonable in their character, well calculated and intended to prevent enlistments, weaken the military power of the government, and produce opposition to it in its efforts to crush the rebellion, and excite further rebellion--copies of which articles, and others of like character issued prior to the order, are shown with the petition.

The defendant Tod further states that he enclosed the Watchman containing the marked articles by mail to the Secretary of War, with a letter, calling the Secretary's attention to the marked articles, and hoping that the Secretary would at once put its editor, John W. Kees, with his secession rebel friends, in Camp Chase prison, where it would be his (the Governor's) pleasure to see that he (Kees) would be safely kept.

He further states that he has set forth his only connection with the alleged arrest, &c., and that he did nothing more; and all he did was in his capacity as Governor of Ohio, and in performance of his duty to the national government.

The case has been argued and heard upon the defendant's petitions for the removal of it to the Circuit Court of the United States.

It nowhere appears in the petition of the plaintiff, that the defendants, in the commission of the trespasses and wrongs against the person of the plaintiff, as alleged, were acting under any authority, or color of authority, from any source whatever. And so far as appears from the petition of the plaintiff, this Court has complete jurisdiction of the case.

But, the defendants having filed their petitions for the removal of the case under the fifth section of the act of Congress, approved March 3, 1863, "relating to habeas corpus and regulating judicial proceedings in certain cases," which, if applicable, and not clearly invalid, so far as applicable, would require that the prayer of the defendants should be granted, no objection to the manner and form in which the application has been made having been raised by the plaintiff.

[Here follows the sections of the law, as quoted above.]

The mere reading of this fifth section, of itself, shows its applicability to the case before us; indeed, I believe that is not denied by the council for the plaintiff.

But it is claimed that the law is invalid, because not authorized by the Constitution of the United States, and because, when applied to the case in hand, is ex post facto, the right of action having accrued prior to the passage of the law. Whatever may be said of the attempt in the fourth section to create a defence, or provide an indemnity against trespasses committed prior to its passage, cannot be urged successfully against the fifth section, which only affects the remedy, and does not, in any manner, touch either the subjectmatter of the action or of the defence.

These sections of the act are so far distinct and separable, that the fifth may be sustained independent of the fourth.

The object of the fourth section seems to be, to declare what is, or to provide what shall be, a defence in certain cases, to wit: "any order of the President, or under his authority." This applies only to cases where there is an order, and constitutes such order a defence in all courts where it shall be pleaded, whether in State or Federal Courts. The object of the fifth section is to provide a mode for the transfer of certain cases from the State to the Federal Courts, to wit: "all suits or prosecutions for act done or committed by virtue or under color of any authority derived from the President, or any act of Congress." This section applies to cases not included in the fourth section; it applies to all such cases as stated, whether there be any order or not.,

In order to secure the benefit of it, its provisions must be strictly followed. Thus it will be seen that either of these sections may be invoked without the other, and that the fifth is applicable to cases to which the fourth is not; and while the object of the fourth is to provide or declare rights, the object of the fifth is to regulate the practice in those and certain other cases. For these reasons, the two sections are so far separable and independent of each other, that the fifth may be held constitutional and the fourth unconstitutional. And, as it is not claimed that the fifth section is of itself unconstitutional, but only becomes so by reason of its inseparable connection with the fourth, I conclude that, as there is no such connection between them, the argument fails, and the Court may be justified in holding the fifth valid, without determining the validity of the fourth.

It will not be denied but that the Legislature of Ohio might, even after the right of an action of trespass in favor of a party had accrued against a Constable or Sheriff, pass a law providing that where such Constable or Sheriff had been sued in trespass, before a Justice of the Peace, as an individual, that if