that the authority to suspend the writ is not in Congress alone.
As before seen, the sole clause applicable to the subject is the 2d, in the 9th section of the 1st article.
If that does not give it exclusively to Congress or prohibit it to the Executive
, then whether it is in the latter or not is to be ascertained irrespective of that clause.
1. The first clause of the section restricts the power of Congress
in words in the case mentioned in it. The third, fifth, and sixth, referring to matters wholly of a legislative character, also apply to Congress alone.
The seventh and eighth, as stated above, clearly embrace the Executive
, and that department alone.
This disposes of all the clauses of the section but the second, the disputed one.
Was that designed to confer the power in question only upon Congress?
If it was, why was not Congress
That was done in the first, the immediately preceding clause, and not in this.
Why the omission?
Was it because cause the power which it referred to was in its nature wholly legislative, as are the powers mentioned in the three immediately succeeding sections?
To say this is to beg the very question in dispute.
If in certain cases the power may become one of an executive character, then one of two things results: First, either that a restraint upon the exercise of the power was made in general language, so as to embrace the Executive
as well as Congress; or, second, if the clause was intended to include Congress alone, was not to subject the power as an Executive one to the restriction at all. It is admitted that Congress are subject to the restriction.
It is also conceded that the Executive
is equally subject, whether the clause includes that department or not, as the power can never be an executive one, except in the cases mentioned in the clause; that is to say, when, in certain cases, in the judgment of the Executive
— not of a court, much less of a single judge--“the public safety” requires its exercise.
With these remarks on the clause we will now inquire if the power, in the existing exigencies of the country, is not an Executive one.
A state of quasi war exists.
The President, under the authority of Congress, the war power, is in the field to put down the rebellion, aimed, avowedly, at the very existence of the Government
States and their people are in arms, with the declared design to wage the war until that object, the destruction of the Government
, is accomplished.
In this state of things what are the powers and the duty of the President
His sworn obligation is to suppress the rebellion, in order “that the laws be faithfully executed.”
In the use of the force placed by Congress under his command as the constitutional commander-in-chief, has he not all powers directly or indirectly belonging to a state of war, and necessary to accomplish its end?
This would seem to be, to use the language of the Chief-Justice
, “too plain and too well settled to be open to dispute;” but as it is practically disputed by that officer, “a proper respect for the high office he fills” requires its examination.
1. There are various securities given to the citizen in his person and property by the Constitution
, inviolable in time of peace, that are suspended in time of war. The public safety involves the safety of each citizen.
His personal rights and rights of property are all dependent upon it. Whatever these are, must, for the time, be superseded, and yield to whatever may become necessary in the judgment of the legal chief of the war power, when war is being waged, to secure such public safety.
His lands may be occupied, converted into camp ground, his timber destroyed, his personal property taken for the use of the army, his house converted into barracks, or pulled down, if obstructing an attack on the enemy, or likely to afford him accommodations.
Some of these things are now being done, and no one, judge or otherwise, has ventured to question their legality.
If done in peace they would be mere acts of lawlessness, and, if threatened, they might be restrained by a writ of injunction.
What, however, would be said of a court or judge who would issue such a writ at this time?
All would pronounce it to be too plain and too well-settled an abuse of the civil power to require refutation, and would at the same time justly denounce the President
if he submitted to it. The second amended article of the Constitution
secures the right to “the people to keep and bear arms.”
The fourth secures them “in their persons, houses, papers, and effects against unreasonable searches and seizures,” and directs that “no warrants shall issue but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched and the persons or things to be seized.”
These securities were properly thought to be so vital to the safety of the people that they were made the subjects of express guarantee.
With these securities no department of the Government
in time of peace can interfere.
But are they not suspended in time of war?
If, in the case of a foreign or a domestic war, as a rebellion, the Executive
believes that arms are secreted for the use of the enemy, or are in a place of private deposit, where they may fall into his hands, can he not order them to be seized without an affidavit describing the place or the arms to be seized?
He also believes that there are persons and papers hazardous to the public safety, because about to embark or be used in the enemy's service, can he not order them to be searched for and seized without such formality?
Who has ever doubted it?
Upon principle the suspension of these guarantees in time of war is thought to be too obvious to need argument.
War could not at times be successfully carried on if these guarantees were in operation.
The course of the commander-in-chief
might be arrested at every foot of his progress.
He must try to lease camp ground for his men; to buy of willing parties timbers and provisions for their support; to omit seizures