Benjamnin F. Butler, Butler's Book: Autobiography and Personal Reminiscences of Major-General Benjamin Butler

[1009] bowing to the decision, I have always thought, with all deference, that it was a pusillanimous one. The opinion was sustained by a majority of only one, the chief justice being a dissenter.

My argument on that point was this: The record alleged that the acts were done while Indiana was the theatre of war; that was admitted. All acts to rescue prisoners of war and afford aid and comfort to the enemy and turn the prisoners loose upon their guards, are warlike acts. I held that this was in time of war, and while Indiana was under military jurisdiction. If the courts were open, they were open only by military permission. They were not open for the purpose of trying cases which were within military jurisdiction, but for proceedings between party and party and with the ordinary business arising in those courts in the time of peace, and such as had no effect upon the Government of the United States. I called the attention of the court to the fact that the courts of the District of Columbia were open, when the sounds of the rebel General Early's cannon were ringing in the ears of the judges of the courts, and everybody else was under the full jurisdiction of the military. Could it be said, then, that the men of Early who were captured were to be tried by civil law by the courts of the district which were utterly powerless to give any force and effect to their decrees? I argued that the court could not take judicial notice of the fact that the courts of Indiana was open; all they could have notice of was that the court ought to have been open, as peace ought to have reigned in Indiana, but it did not.

I take the liberty to remark here, that during the whole War of the Rebellion the government was rarely ever aided by the decisions of the Supreme Court, but usually was impeded and disturbed by them. After I left Baltimore Chief Justice Taney issued a habeas corpus to release a secessionist who had been captured and was held by the orders of the President of the United States. So that the President was obliged to suspend the writ of habeas corpus in order to relieve himself from the rulings of that chief justice who delivered the opinion substantially that the negro had no rights that a white man was bound to respect.

While I remained in Washington, I was trying cases before the supreme court of the district and the Supreme Court of the United States. There was one case which I tried before both courts which was very important, not only for the amount involved, but as establishing