decided in 1895, may be regarded as an
addendum. Moyer, a labor leader, brought suit against Peabody, for
having ordered his arrest during a labor dispute which occurred while
Peabody was governor of Colorado. Speaking for a unanimous Court, one
Justice being absent, Justice Holmes said: "Of course the plaintiff's
position is that he has been deprived of his liberty without due process
of law. But it is familiar that what is due process of law depends on
circumstances. It varies with the subject matter and the necessities of
the situation. * * * The facts that we are to assume are that a state of
insurrection existed and that the Governor, without sufficient reason
but in good faith, in the course of putting the insurrection down held
the plaintiff until he thought that he safely could release him. * * *
In such a situation we must assume that he had a right under the state
constitution and laws to call out troops, as was held by the Supreme
Court of the State. * * * That means that he shall make the ordinary use
of the soldiers to that end; that he may kill persons who resist and, of
course, that he may use the milder measure of seizing the bodies of
those whom he considers to stand in the way of restoring peace. Such
arrests are not necessarily for punishment, but are by way of precaution
to prevent the exercise of hostile power. So long as such arrests are
made in good faith and in the honest belief that they are needed in
order to head the insurrection off, the Governor is the final judge and
cannot be subjected to an action after he is out of office on the ground
that he had not reasonable ground for his belief. * * * When it comes to
a decision by the head of the State upon a matter involving its life,
the ordinary rights of individuals must yield to what he deems the
necessities of the moment. Public danger warrants the substitution of
executive process for judicial process."[408]

THE DEBS CASE

The Debs case of 1895 arose out of a railway strike which had caused the
President to dispatch troops to Chicago the previous year. Coincidently
with this move, the United States district attorney stationed there,
acting upon orders from Washington, obtained an injunction from the
United States circuit court forbidding the strike on account of its
interference with the mails and with interstate commerce. The question
before the Supreme Court was whether this injunction, for violation of
which Debs has been jailed for