I concur in the opinion delivered by Mr. Justice Moore. I express this concurrence in order that there may be no misapprehension as to my opinion as to the real question involved in the case and the grounds of the decision.
The expression simply of my concurrence might suffice. And it might suffice to dispose of the argument upon martial law to say, there is no question of martial law properly arising for discussion in the case.
But the observations indulged in the dissenting opinion of Mr. Justice Bell concerning the bill of exceptions and martial law, render it proper that I should advert briefly to my action and rulings upon the hearing, in order to prevent misapprehension as *431to my own opinion and rulings. And to a'proper understanding of these rulings, it is material to observe that the object of the proceeding upon habeas corpus is to set the complainant .free from present illegal restraint. It is immaterial whether the original caption was lawful or unlawful. If at the time of the return of the writ, the defendant shows a legal caus%for restraint, then imposed, the prisoner will not be discharged, notwithstanding the original taking may have been without any legal authority.
There was in this case no pretence that at the time of the return, or of the service of the writ, the complainant was detained under martial law, or by any other authority than as a soldier, called into the service of the Confederate States under the act of congress, known as the conscription law. Whether his original arrest and detention was legal or not, was then wholly immaterial, since he had been discharged from that restraint: and the only question was whether the return showed good cause for his then detention, he having been enrolled as a conscript; whether the law under which he was detained as a soldier was constitutional. It was my opinion that the law was constitutional; and it was upon this ground .alone that I remanded him into the custody of the officer. This being manifestly the only question proper to be decided or considered, I excluded all evidence offered by the complainant to bring into discussion the proceedings attending the original arrest under martial law, as wholly irrelevant and immaterial. If any wrong had been done the complainant in the matter of the original arrest; if a trespass or false imprisonment had been committed, this proceeding could not afford a remedy for such injury already overpast; the remedy must be sought in a different proceeding. Hence I declined to hear evidence touching any proceedings under the order of the provost martial. There was and could be no question of martial law in the case. Yet the counsel for the complainant seemed to suppose that there was, or at least to wish to make it a question; and in order to afford the complainant the utmost benefit of his appeal in the estimation of his counsel, and them the opportunity to be heard in this court upon evéry question they might see proper to urge in his behalf, I gave the bills of exceptions in the terms in which they were drawn and presented by his counsel *432embracing that question. If I had thought proper to enter upon the investigation of a question not properly arising in the case for decision, the information requisite to its due consideration was not accessible. We had no authentic information of the action of congress upon the subject, or the policy the government had deemed it necessary to adopt for the safety of the army, and its own self-preservation. Mail communication with the seat of government had been interrupted, and intercommunication almost wholly suspended. My information, from sources deemed reliable, was that congress had authorized the declaration of martial law, and that it had accordingly been declared by authority of an act of the Confederate Congress. If so, the decision of the Supreme Court of the United States in the case of Luther V. Borden, (7 Howard U. S. C. R., 1,) then before me, was a direct authority in favor of its constitutionality. In view of that decision, sanctioned by the venerated name of Chief Justice Taney, Avho delivered the opinion of the court, and Avho, it will be remembered, on a recent memorable occasion, was the first to raise his voice against the usurpation of the present federal executive in suspending the writ of habeas corpus without authority of law, and without authentic information not accessible, as to the action of congress, sitting, not as a court to pronounce an authoritative decision, but as a single judge in vacation, I did not think proper to pronounce against the authority of congress to declare, or authorize the declaration of martial law. Nor do I deem the present an appropriate occasion to express (a judicial opinion upon that question. It will become the province of this court to decide upon the constitutional powers of a co-ordinate department of the government, when a case is presented calling for a decision. It is proper, however, to say, that it now appears that the declaration of martial Hay in this State was not, as was at the time supposed, by authority of any act of congress; and it is now conceded on all hands that it was unauthorized. The only legislation it seems by congress, authorizing its declaration, was the act of the 27th of February, 1862, which provided that “during the present invasion of the Confederate States, the president shall have poAver to suspend the Avrit of habeas corpus in such cities, towns, and military districts as shall in his judgment be in such *433danger of attack by the enemy, as to require the declaration of martial law.” As was said by the judiciary committee of the house, on a subsequent occasion, this act either assumed that the president had authority, without the aid of' legislation, to declare martial law, or it was designed to confer that authority. The president so understood it; for it is well known that he proceeded to exercise the authority by declaring martial law in several places. Subsequently, in consequence of abuses, the subject elicited investigation. Congress modified its former legislation on the subject, and it is now doubtless better understood than formerly by both the civil and military authorities. I had no doubt of the constitutionality of the conscription law: and as an appeal was to be taken from my decision, and my opinion on the hearing in vacation could have no weight as authority, or effect beyond the present disposition of the case, in view of the extraordinary circumstances existing in this community and vicinity at the time, too well known to require mention here, I declined to hear argument. Under the attending circumstances, I saw no good but only harm that could come of the discussion.
I have thought proper to say this much explanatory of my action and rulings upon the hearing, to prevent misapprehension as to my opinion and the course I should deem proper ordinarily to pursue on sticli an occasion. Under different circumstances I should cer-' tainly have heard argument; and I might have stricken from the bills of exceptions matter which I deemed wholly immaterial and irrelevant to the case. If I did not do so on this occasion, it was for reasons which I thought sufficient at the time, and from a wish to give the party the benefit of every question his counsel might suppose could possibly be of advantage to him on the final hearing. This has now been accorded to the party. And our conclusion upon the only question properly arising in the case for decision, has been announced in the opinion of the majority of the court upon reasons so fully, and to my mind satisfactorily presented by my associate, as to render it unnecessary that I should add more than the. expression of my concurrence.
Judgment affirmed.
*434Note, By On, J, Wheeíer, In the case of Luther v, Borden, Chief Justice Taney delivering, the opinion of the court, and referring to the act-of the legislature of Rhode island declaring martial law throughout the State, holds this language:
“ Unquestionably a military government established as the permanent government of the State, would not be a republican government, and it would be the duty of (Jongress to overthrow it. But the law of Rhode Island evidently contemplated no such government. It was intended merely for the crisis, and to meet the peril in which the existing government was placed by the armed resistance to its authority. It was so understood and construed by the State authorities. And, unquestionably, a State may use its military power to put down an armed insurrection too strong to he controlled by the civil authority. The power is essential to the existence of every government—essential to the preservation of order and free institutions, and is as necessary to the States of this union as t'o1 any other government. The State itself must determino what degree of force the crisis demands, and if the government of Rhode Island deemed the armed opposition so formidable and so ramified throughout the State as to require the use of its military force, and the declaration of martial law, we see'no ground upon-which this court can question its authority.”
The court accordingly decided, that under the authority of martial law an officer might lawfully arrest any one who ho had reasonable grounds to believe was engaged in the insurrection, and might order a house to be forcibly entered and searched when there was reasonable grounds for supposing he might be there concealed. (7 Howard, S. C. R., 45, 46.)
Such was the opinion and decision of the Supreme Court- of the United States in a case which texeited much attention at the time. That it was deliberately, and not hastily or inconsiderately decided, is manifest from the fact that Mr. Justice Woodbury delivered a most ableand elaborate dissenting opinion, reviewing the whole subject, and denying the constitutional power of the legislature to declaro martial law.
Judge Woodbury deduces his conclusion thus: “The necessities of foreign-war, it is conceded, sometimes impart great powers both as to things and persons. But they are modified by those necessities, ttncí subjected to numerous regulations of national law, and justice, and humanity. These, when; they exist in modern times, while allowing the persons who condnct war some necessary authority of an extraordinary character, must limit, control, and make its exercise, under certain circumstances and in a certain manner, justifiable or void, with almost as much certainty and clearness as any provisions concerning municipal authority or duty. So may it be in some extreme stages of civil w ar. Among these, my impression is, t-bat a state of war, whether foreign or domestic, may exist, in the great perils of which it is competent, under its rights and on principles of national law, for a commanding officer of troops under the controlling government, to extend certain rights of war, not onfy over his camp, hut its environs and the near field of his military operations, (6 American Archives, 186,) but no further or wider. (Johnson v. Davis, et al., 3 Martin, 530, 531.) On this rested *435the justification of one of the great commanders of this country and of the age, in a transaction so well known at New Orleans.” (Ibid. 83.)
I cite these because the principal judicial opinions I have met with on the subject. It is one of great moment, involving the powers of the government and the liberty of the citizen, which has no safeguard but in the supremacy of law. It is a subject, too,-which the history of this country, until recently, had given but little occasion to investigate. And hence, when the occasion arose in a time of great public danger, the subject was not so well under stood, nor the limits of the legitimate exercise of power as well guarded as since the unwarranted powers assumed in some instances have challenged a more thorough investigation and understanding of the subject by congress and the country. Since congress has been called upon to revise its own legislation on the subject, conceded now to have been at first not well considered, the judiciary committee of the House have made a report in which the subject has been examined and some general views presented, which appear to have been approved by congress. The committee concluded that as laws can be suspended only by the law making power, and as all the legislative power of the Confederate States is vested by the constitution in congress, it follows that no law can exist by the authority of the Confederate States unless it be enacted by congress. “ And in whatever sense martial law may be declared, (they say,) the power to declare or authorize it seems to belong exclusively-to the legislature, whether of a State or of the Confederate States.” “ If martial law over the people be necessary in any case, it should be regulated and defined in a sense consistent with the constitution by distinct enactments.” It is conceded that the necessities of war may sometimes impart extraordinary pow ers to military commanders. Such instances are referred to in the opinion of Mr. Justice Woodbury. But these seem to be the cases contemplated in the observations above quoted. Whenever, therefore, a case shall arise under the legislation of congress, it will become the province of the judiciary to decide whether such legislation is warranted by the grant of pow ers in the constitution.
In any view, the difficulty seems to be to define what is meant by martial law. If by it is meant a power to exalt the military above the civil authority, or to supersede the latter by the former, no one would contend for such a power in any officer or department of the government; for that would be in manifest violation of the constitution, which must ever be held paramount, and in subordination to which all power must be exercised as well in war as in peace. But unless what is meant by martial law be defined in advance, it would seem difficult to pronounce either that it can, or cannot constitutionally be declared or enacted. And the only test to which any legislation which may be had on the subject can be applied, is its conformity to the constitution, which, of course, cannot be done in advance of, or without knowing what that legislation is.