Rebellion Record: a Diary of American Events: Documents and Narratives, Volume 2.
Frank Moore, Ed.

[186] in such cases the duty, “to provide for calling forth the militia to execute the laws of the Union, suppress insurrections, and repel invasions.” The entire force has therefore now been “called into the actual service of the United States,” and, by the very words of the Constitution, is under the direction of the President as commander-in-chief.

He is to use them and to exercise, and to authorize others to exercise, all power in their use necessary to attain the end in view, the suppression of the rebellion. The power given him is strictly a military one. It is given because, in such a case as Congress by their legislation assume, a state of quasi war exists between the Government and the rebels. Not only the safety but the very existence of the Government depends on the result. The rebellion must be suppressed, or the integrity of the Government suspended, impaired, or destroyed. In such a case it is evident that “the public safety” requires the use of every legitimate means necessary to accomplish the end, the extinction of the rebellion, that are expressly or impliedly delegated to the President by Congress.

Believing that instances might occur in Maryland or elsewhere where the purpose might be endangered if the civil proceeding by habeas corpus was suffered uninterruptedly to prevail, the President authorized the commanding officer for the time being, through the commander-in-chief, to disregard it, if in his judgement the public safety demanded it, and to vouch him for his authority. This step was taken with no view to oppress the citizen, or illegally interfere with the ordinary course of civil justice, but solely from a conviction that it was indispensable to the public safety, so clearly involved in the suppression of the rebellion. As no general dispensation of the writ was deemed necessary, but merely in certain cases of which the officer in command was, in the first instance, necessarily to judge, no notice was given that the writ would be suspended. Such a notice would have been out of place where the design was to suspend it in particular cases only, whose special circumstances could not in advance be known, and of course could not be stated in a notice. Under this authority, delegated to Gen. Cadwalader, a case occurred — that of John Merryman, of Maryland--in which that officer refused to obey such a writ issued by the Chief-Justice of the United States. That high officer has since filed his opinion, and has, it is said, caused a copy of the same, with all the proceedings, to be transmitted to the President, with whom, to use the words of the Chief-Justice, it will “remain,” in fulfilment of his constitutional obligations, to “take care that the laws be faithfully executed,” to “determine what means he will take to cause the civil process of the United States to be respected and enforced.” In this opinion the Chief-Justice decides that “the President, under the Constitution and laws of the United States, cannot suspend the privilege of the writ of habeas corpus, nor authorize any military officer to do so.”

Since the publication of this opinion the author of this paper has reviewed the subject, and availed himself of all the light furnished by the Chief-Justice. His original impression, however, that the President's conduct was perfectly constitutional, has but been confirmed. It is the purpose of this paper to state the reasons for this impression. This it is supposed is justified by the nature of the subject and the elevated character of both the high functionaries more immediately concerned. The duty devolved on the President by the obligation to take care that the laws “be faithfully executed,” and to use with that view the means furnished by the acts of Congress before referred to, is clearly and exclusively devolved upon him alone. Of its character and extent he is consequently to decide for himself, subject only to his responsibility to the people and to Congress. If, contrary to his own judgment, he abandons that judgment and suffers hmiself to be governed by the judgment of any coordinate authority of the Government, he would be false to his duty, and do any thing but fulfil “his constitutional obligation” to “take care that the laws be faithfully executed.” For this principle there is the high authority of a former distinguished President, Gen. Jackson. When, in July, 1832, it was urged upon him that a measure submitted for his action as President was conclusively settled to be constitutional by an opinion, not of a single judge of the Supreme Court, but of the entire Court, he held that that “ought not to control the co-ordinate authorities of the Government;” that “Congress, the Executive, and the Court must each for itself be guided by its own opinion of the Constitution. Each public officer who takes an oath to support the Constitution swears that he will support it as he understands it, and not as it is understood by others. It is as much the duty of the House of Representatives, of the Senate, and of the President to decide upon the constitutionality of any bill or resolution which may be presented to them for passage or approval, as it is of the Supreme Judges, when it may be brought before them for judicial decision.”

The correctness of this doctrine, as applied to any constitutional power vested in either of the three branches of the Government for its separate action, has never been seriously questioned. To hold otherwise would be to attach superiority to one over the rest. Each being coordinate and clothed with its respective powers, each must judge for itself what those powers are, and act accordingly, not in subordination to, but independently of, the others. The power, then, which the President exercises in such a case is clearly conferred upon him, and on him alone, as President. It is made so by the Constitution and laws, and he is therefore the sole judge of its nature and limits. What, then, is the law?

First. The writ of habeas corpus, except as