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Doc. 58.-power of the President to suspend the habeas corpus writ.

by Reverdy Johnson.
Several States of the Union having renounced their allegiance and that of their citizens to the Government of the United States, and asserted their right to do so, and organized a Government of their own, were in arms to maintain the rebellion. The laws of the United States were forcibly resisted; their officers, either voluntarily or through violence, were abandoning their duty and resigning their commissions, and a determination announced by the rebels to continue the rebellion until its success was achieved, and the usurped Government recognized by that of the United States. In this treasonable effort it was believed that there were misguided citizens in Maryland and elsewhere, whose States were yet loyal, who participated in the treason, aided it secretly, and designed to involve their States in the rebellion. In this state of things the President, under his sworn duty to “take care that the laws be faithfully executed,” determined on resorting to the means afforded by the second section of the act of 28th February, 1795, and by the act of the 3d of March, 1807. He believed that the laws of the United States were being “opposed,” their execution obstructed, “by combinations too powerful to be suppressed by the ordinary course of judicial proceedings, or by the powers vested in the marshals,” and he therefore decided, as he was bound to do, “to call forth” such of the militia as he deemed necessary to suppress the combination, and to employ to the same end the land and naval forces of the United States. Of his duty to see to the execution of the laws he could have had no doubt, as that is in words imposed by the Constitution itself. Nor could he have had any doubt of his authority and obligation to resort for that purpose to the powers conferred on him by the laws referred to. The meaning of these laws is free from all question, and the constitutionality of the first was long since sanctioned by a unanimous decision of the Supreme Court in the case of Martin and Mott, 12 Wheat. 19, whilst the validity of the last was never drawn into doubt. In that case it was also decided that the President was the sole judge of the facts which would authorize his use of the means provided by these laws, and that his decision was conclusive not only upon the citizens, but upon every branch of the Government, whether Federal or State. In the language of the Court, “the authority to decide whether the exigency has arisen belongs exclusively to the President, and that his decision is conclusive upon all other persons.”

The obligation on the President being to suppress the revolt and to “cause the laws to be duly executed,” the military authority vested in him for that purpose is to be exercised until the end is attained. The sole limitation is one of time, and that regards only the militia whom he can use but from the period of their call into service till the expiration of thirty days after the commencement of the next session of Congress. It thus appears that the militia and army and navy of the United States, now being used by the President to suppress the rebellion, are in the field by the authority of Congress, in whom the war power is vested, and to whom is also delegated the authority, and consequently [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 [187] hereinafter stated, is nowhere mentioned in the Constitution or secured to the citizen by any general phraseology. Independent of the exception alluded to, the writ being given or recognized by law might have by law been repealed, and consequently have been repealed by Congress, in whom was vested, but for the exception, ample power for that purpose. The legislative authority of that body is delegated, not by the entire first article of the Constitution, but by the eighth section of that article alone. Under these powers it is clear that Congress might have refused to authorize a writ. Without such authority no court or judge of the United States could issue it; and because of this, Congress passed the fourteenth section of the judiciary act of 1789. The officer or court to issue the writ being to be designated by Congress, Congress might now repeal that part of the act, and the writ would not exist as a remedy under the Government of the Union. That such a measure would be wrong is admitted; but it would not be such a wrong as would make it unconstitutional. Its correction would be left with the people, as its occurrence is not to be anticipated because of the responsibility of Congress to the people. But occurring, and as long as it might continue, the writ would be of no avail under the Government of the Union. The exception referred to is in the second paragraph of the ninth section of the article. This is the paragraph which it is supposed renders the conduct of the President in the particular under consideration so clearly unconstitutional, and “too plain and too well settled,” as unconstitutional, “to be open to dispute.” The words of the paragraph are: “The privilege of the writ of habeas corpus shall not be suspended unless when, in case of rebellion or invasion, the public safety may require it.” It is said that this clause is in the article “devoted to the Legislative department,” “and has not the slightest reference to the Executive department,” and was designed, therefore, to give the particular power to suspend the writ exclusively to Congress.

In the first place, the statement is erroneous in point of fact. It is true that the general object of the article is to constitute the legislative department, and to confer on it all the legislative authority of the Government. But that is not its exclusive purpose. The 10th section of the article has nothing to do with the legislative power of the Union. It is devoted altogether to restraints on State power. These are made in certain cases absolute, and in others dependent on Congressional assent, but they contain no grant of legislative power to Congress. That power, and the whole that the body possesses, is given by the 8th section. That section commences with saying, “The Congress shall have power,” and in eighteen paragraphs states the cases to which the power is to extend. The exclusion of all other powers than those there given is not only admitted, because the powers of Congress are all enumerated, but because of the terms with which the article begins, “all legislative powers herein granted shall be vested in Congress,” excluding of course all powers not embraced by the grant. This being the scope of the power which is in any one of the instances delegated by the 8th section of the article, that cannot, by any latitude of construction even, be held to vest in Congress exclusively the right to suspend the writ of habeas corpus. It is safe to say that there is not one. Unlike the British Parliament, Congress has no legislative authority other than that expressly delegated or reasonably to be implied from what is delegated. If therefore, as will be evident from an examination of the 8th section, there is nothing in it giving the power to suspend the writ to Congress alone, that power, if found anywhere, is not in the only section which confers legislative power. But it is said that the restriction on the authority to suspend the writ being in the 2d paragraph of the 9th section, and the entire article having “not the slightest reference to the Executive Department,” shows that the power to suspend the writ was intended to be vested in Congress alone. The error of this statement has already been pointed out by referring to the nature of the 10th section of the article, which is wholly devoted to the negation of power to the States, and not to the grant of power to Congress. But the error is also apparent, though not to the same extent, by the provisions in the 9th section itself. The 7th paragraph of the section as clearly embraces the Executive as does any part of the succeeding one. By that paragraph it is provided that, “no money shall be drawn from the Treasury but by appropriations made by law, and a regular statement and account of the receipts and expenditures of all public money shall be published from time to time.” These clearly, so far from not having “the slightest reference to the Executive department,” refer almost exclusively to that department. The Treasury is and must be under the Executive control. A restraint, therefore, on the authority to draw money out of the Treasury, directly and exclusively applies to the department. So again, in the following, the 8th paragraph: “No person holding any office of profit or trust under them, [ the United States, ] shall, without the consent of Congress, accept of any present, emolument, office, or title of any kind whatever from any king, prince, or foreign State.” Officers of the United States are a part of the Executive department, and, but for this prohibition, could accept the things here prohibited. This clause, therefore, like the other, so far from not having “the slightest respect to the Executive department,” refers directly and exclusively to that department. The assumption, then, of the Chief-Justice as to the nature of the article being unfounded, the weight of the argument, whatever that would otherwise be, founded on the assumption totally fails.

But there are other reesons for supposing [188] 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 named? 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 [189] essential to his success, and if he fails to lease, to buy, or to seize, his men may have no encampment and no provisions, the army no timber, and spies and secret enemies and arms and treasonable papers giving information to the enemy fatal to his plans be practically beyond his reach. The absurdity of these results demonstrates that in time of war these civil guarantees have no place. They are all suspended upon the great overruling principle of the public safety. The power to wage war, to repel invasion, or suppress rebellion, existing in the Constitution, whilst the war continues, operates of itself on that great principle to suspend the ordinary securities for person and property — securities in their nature inconsistent with, because possibly fatal to, a state of war. If these express guarantees of personal liberty and of private property, thought to be so essential to freedom as to be made the subjects of amendments to the Constitution, are to yield to the public necessity which war produces, on what even plausible ground can it be maintained that the writ in question — not even secured by the Constitution, for Congress, as has been seen, may not authorize any officer to issue it, and no court or judge of the United States could issue it without such authority — is not also liable to like suspension? May it not be used to endanger or defeat the success of the war? May it not be used to further, in case of rebellion, the triumph of the rebellion? In Maryland, for instance, where it is believed disaffection to the Government to a certain extent prevails, and sympathy for the rebels is entertained, may it not be exercised so as seriously to disconcert the successful progress of our army? The writ may be issued by any State authority authorized by State law. Every justice of the peace of a State, as well as every judge of a court, may have the power, and if Congress only can suspend the writ in case of rebellion, and be not in session, as was the case in this instance, and perhaps not to be convened for months, no spy, no citizen, though treasonably aiding the rebels, or about to join them in the field, and no one of the rebels, chief or subaltern, could be securely taken and held. The writ might meet the officer at every step of his march. It might force him to give up his prisoner, or delay his march, or leave his command, and subject himself to the jurisdiction of the justice by insisting before him on the legality of the capture. This, too, might occur in a disaffected district, and then how idle the capture! These consequences, which in some cases would be certain to happen, might be more fatal to tile success of war and more advantageous to the rebellion than the operation of the guarantees before spoken of; and yet, whilst it has never been denied that these last are suspended by and during the war, that of the writ in question is supposed to be as operative as in time of peace! And what makes the doctrine yet stranger is, that the Constitution does not confer on Congress the power in any case to suspend the other guarantees, but does expressly authorize them, and in terms which make it their duty, to suspend that of the writ, when, “in case of rebellion or invasion, the public safety may require it.” The writ, too, is given but to secure a personal right, whilst the other guarantees embrace not only that right, but nearly all others of person and property.

But the doctrine acted upon by the President does not rest alone on general reasoning. It has been fully recognized in a case before the Supreme Court of the United States, in which it was directly presented, and in the very clearest terms maintained by the present Chief Justice himself, who pronounced the opinion. The case referred to is that of Luther and Borden, in 7 Howard, 1. In 1842 a controversy arose in Rhode Island between the existing charter Government and one alleged by its supporters to have been legally substituted in its place. This last, through its professed Governor, Thomas W. Dorr, prepared to support itself by force of arms, and many citizens “assembled in arms for the purpose.” The charter Government thereupon passed an act declaring the State under martial law, and at the same time proceeded to call out the militia to repel the threatened attack, and to subdue those who were engaged in it. Under this authority the defendants “broke and entered” the house of the plaintiff “in order to arrest him,” and for this alleged trespass the suit was instituted. The defendants justified. The very question, amongst others that were presented, was the one under consideration: Has a State in such case a right to substitute martial for the civil law, and in the exercise of such right can its officers disregard the latter? The Court held the affirmative of both. The reasons for such a ruling are stated so fully and clearly by the Chief-Justice that they are here given:

The remaining question,

he said, “is whether the defendants, acting under military orders, issued under the authority of the Government, were justified in breaking and entering the plaintiff's house. In relation to the act of the Legislature declaring martial law, it is not necessary, in the case before us, to inquire to what extent, nor under what circumstances, that power may be exercised by a State. Unquestionably a military government, established as a permanent government of the State, would not be a republican government, and it would be the duty of Congress 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 be 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 [190] is as necessary to the States of this Union as to any other Government. The State itself must determine 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 on which this court can question its authority. It was a state of war; and the established Government resorted to the rights and usages of war to maintain itself, and to overcome the unlawful opposition. And in that state of things the officers engaged in its military service might lawfully arrest any one who, from the information before them, they had reasonable grounds to believe was engaged in the insurrection, and might order a house to be forcibly entered and searched when there were reasonable grounds for supposing he might be there concealed. Without the power to do this martial law and the military array of the Government would be mere parade, and rather encourage an attack than repel it.”

The scoring of the passages is not in the original, but is made to show how clearly the principles they contain support what the President has done. In the same opinion, speaking of the power of the President alone to decide whether the exigency exists authorizing him to call out the militia under the first section of the act of 28th February, 1795, and maintaining it, and denying to the court the right to revise it, it is said:

If it could, (that is, if the Court could revise,) then it would become the duty of the Court (provided it came to the conclusion that the President had decided incorrectly) to discharge those who were arrested or detained by the troops in the service of the United States or the Government which the President was endeavoring to maintain. If the judicial power extends so far, the guarantee contained in the Constitution of the United States (that is, of protecting them against insurrection) is a guarantee of anarchy and not of order.

Neither in this passage nor in the first quoted, nor in any other part of the opinion, is it intimated that this right of war, this dispensation of the ordinary civil process — the result of such right, however, for a time suspending all other rights — is yet subject to the particular right of habeas corpus--one which, of all others, might be used most injuriously to the public safety, the object of war, than any other. So far from such an intimation, in another part of the opinion, referring to such a crisis as the rebellion which now so unhappily prevails, the Court says: “the ordinary course of justice would be utterly unfit for the crisis.” As a part of that ordinary process, it must be admitted, is the writ of habeas corpus, that as well as every other yields, because, in the language of the Court, “unfit for the crisis.”

It is submitted that sophistry itself cannot distinguish this case from the one before us. An effort was there made to destroy the government of Rhode Island by means of an armed rebellion. It was deemed by the State to be “so formidable and so ramified” “as to require the use of its military force and the declaration of military law.” The Court said: “We see no ground upon which this Court can question its authority to do both.” In that case the Chief-Justice said: “Unquestionably a State may use its military power to put down an armed insurrection too strong to be controlled by the civil authority. The power is essential to every government, essential to the preservation of order and free institutions, and is as necessary to the States of this Union as to any other Government.” Rhode Island was then in “a state of war, and the established government resorted to the rights and usages” of a state “of war to maintain itself and overcome the unlawful opposition.” “In that state of things,” said the Court, “the officers engaged in its military service might lawfully arrest any one who, from the information before them, they had reasonable grounds to believe was engaged in the insurrection.”

These principles were laid down in the broadest terms, and seem to have been in the view of the Court, as indeed they are almost self-evident propositions. No exception to their operation in such a case as was before them was suggested or even hinted. The civil laws of every description were held to be suspended by the laws of war. The arrests are to be made under the authority of the latter to subserve the object of the war, and not, as the Chief-Justice now holds, in aid of the judicial authority and subject to its control. The officer is to act on the “information before” him, and to act at once, and with no responsibility but to his military superior. To subject him in the discharge of this duty to the control of the judicial authority would be, in a material degree, to place the conduct of the war in the hands of that authority. The constitutional commander-in-chief, the President, would be not only subordinate to the Supreme Court of the United States and every one of its judges, but to every civil functionary, whether of the State or of the United States, in whom was vested the power to issue the writ of habeas corpus. If this was so, then the Court and all having that power, abandoning their other duties, should constitute a part of the army and accompany it in its campaigns. This would be necessary to avoid delay, so fatal at times to military success. For, if not done, and the control of the writ actually exists, then each prisoner arrested, whether in battle or not, must be taken at once to the “judicial authority,” and disposed of as that authority shall determine. It is evident that no such idea was entertained by the Court in the case in Howard. What was done by the defendants there as officers under the military authority of the State, was not submitted at all to any civil jurisdiction. It was defended on [191] the ground of the military right alone, and the defence sustained by the Court on that ground alone, and as justified by the rights and usages of war.

It is no answer to the application of this case to the one before us, to say that in that instance martial law was declared by the legislative authority of Rhode Island and not by its Executive. The reason for this was that such declaration was authorized by the constitution of the State. The power was in the legislative department, because not only the power to declare war, but that of conducting it, was also in that department. The legislative department, in the exercise of its mere authority to declare war, is not authorized to declare martial law. The last authority arises after, and because the first is exercised. From its very nature it can only be exercised by the power in which is vested the power to conduct the war. The necessity which is to make it advisable depends on place and time, and the present exigencies of the contest. A whole State is not to be subjected to it when a part only is threatened by the enemy, or is in rebellion. Martial law is a means which is afforded for conducting the war, and is of course to be exercised by the department having charge of its conduct. Under the Constitution of the United States it is clear that although the power to declare war is vested solely in Congress, the conduct of the war is solely with the President. Over this last Congress has no other control than such as a control over the supplies affords. If the authority to institute martial law in case of war or rebellion in a State is more appropriate to the department having the management of the war, a fortiori is it more so where the United States are at war or engaged in suppressing a rebellion? To declare martial law in either of such cases over the whole of the United States would be useless, and to the extent that it would be useless would be tyrannical. Its justification, its legality, depends on a crisis for which, to repeat the words of the Chief-Justice, “the ordinary proceedings in courts of justice would be utterly unfit.” That crisis must be accidental and local. It cannot always and everywhere exist during the contest. The power consequently to provide for it must be in the department having the conduct of the war, and in a condition to judge understandingly of the exigency and to apply the remedy.

That the principles thus decided authorized and made it the duty of the President to deny the writ in such cases as he or his legally delegated officers for that purpose who may be at the place of the emergency should think the public safety required, is thought to be too plain, when fully considered, to be seriously questioned. The public safety, to preserve which is now the President's duty, he will doubtless continue to promote. He certainly believes, as well he may, that it will very materially tend, and has tended, to further the end of that duty — the suppression of the rebellion and the restoration of the unmolested course of the laws of the United States--to deny obedience to the writ in the cases supposed.

That the power he has exercised and will continue to exercise, may be abused, is not more true of this than of any other power. That was urged as an objection against the power in the case in Howard, and met in the patriotic spirit which illustrates the whole of the Court's opinion. The following is their language in reference to the objection:

It is said that this power in the President is dangerous to liberty, and may be abused. All power may be abused if placed in unworthy hands. But it would be difficult, we think, to point out any other hands in which this power would be more safe, and at the same time equally effectual. When citizens of the same State are in arms against each other, and the constituted authorities unable to execute the laws, the interposition of the United States must be prompt, or it is of little value. The ordinary course of proceedings in courts of justice would be utterly unfit for the crisis. And the elevated office of the President, chosen as he is by the people of the United States, and the high responsibility he could not fail to feel when acting in a case of so much moment, appear to furnish as strong safeguards against a wilful abuse of power as human prudence and foresight could well provide. At all events, it is conferred upon him by the Constitution and laws of the United States, and therefore must be respected and enforced in its judicial tribunals.

The error of a different doctrine from that upon which the President is acting is thought to be obvious, not only for the reasons given by the Chief-Justice in the case cited, but for some others which will now be stated. The power which the President has exercised and intends to maintain, is vested in him as commander-in-chief. It is strictly and exclusively a military power. The means placed at his disposal by Congress for its execution are altogether military. The militia and the army and navy are the only means that are furnished him, and the end for which they are furnished is to suppress a rebellion for which the ordinary course of proceedings in courts of justice would be “utterly unfit.” Resort to the civil law or to its ministers is nowhere directed or suggested. What is to be done is to be done by force of arms, which implies the absence and inadequacy of every other resort. He has to fight the rebels and capture or subdue them to allegiance. These captures are all arrests, and may be made before or after battle, or in battle. The time and place, when and where made, are immaterial to their legality or effect. In each the captured is a prisoner of war and so to be held. Are such prisoners entitled to the writ of habeas corpus? If so, and the leaders and chiefs who are marshalling their traitorous hosts to destroy the Government, if seized could not be held, if any civil officer, [192] clothed with the power to issue the writ, should issue it, and being obeyed, should decide (and such instances would no doubt occur) that the enterprise was not only not treasonable but loyal, constitutional, and praiseworthy. Discharged, they return to their troops, and are again leading them in their treacherous career. Is this the way in which the rebellion is to be suppressed? Is this the end of the power and of the means vested in the President to suppress it? If it is, then, in the words of the Chief-Justice, in the case quoted, “the military array of the Government would be mere parade, and rather encourage attack than repel it.” The consequences certain almost to follow from such a doctrine are thought to be so striking and so fatal to a faithful execution of the laws, as to suffice without more to demonstrate its unsoundness.

Again, the power to disregard the writ, which the President believes he has, is not the same power given to Congress by the ninth section of the first article of the Constitution. That looks to a general suspension for a limited time. During that time, as far as the Government of the United States is concerned, the writ is totally inoperative. No one, no how imprisoned by the authority of the Government, can have the writ. Its total suspension within the period determined by Congress, not only covers the cases of persons arrested upon treasonable charges or suspicions, but all other cases, irrespective of the causes of arrest. This is not the power vested in the President. His authority is measured and limited by the existing exigency of each arrest. In each instance, if the grounds of the arrest involved in any way the success of his array of force, he has a right to hold the party till all danger to that object is at an end. This being a military question, it must be for him, as the commander-in-chief, or his agents, to decide it. He does not assume the power to suspend the writ in the sense in which that power is in Congress. Congress can repeal it altogether for a time. Without repealing it he disregards it for the military end he is bound to accomplish — the the suppression of the rebellion by force — and only in such instances as are thought by him to be material to that end. The two powers are by no means identical. The one is legislative, the other is executive. The one is a civil, the other is a war power. The one a civil, the other a military question. If the war power of every Government may declare martial law — and this no one has yet denied — then it must have the power, as one of the admitted incidents of martial law, to disregard the writ in question.

But it is alleged that a control over the writ is exclusively with Congress, because the Constitution gives it to that department, and because it is, in its nature, a legislative power. For the reasons already assigned neither of these grounds is believed to be correct. On the contrary, the war power — that is, the conduct of the war — as has been shown, would be comparatively impotent if it was subjected in all cases to the writ in question.

It seems, too, to be supposed — and such is the view now taken by the Chief-Justice--that no powers are vested in the Executive except such as are expressly delegated by the second article of the Constitution. And, reasoning on this hypothesis, it is contended that the power which the President has exercised is not in him, because not so given by that article. It is submitted that this is an incorrect interpretation of the Constitution. As far as the legislative and judicial departments are concerned the rule is right — as to the first, because in words it is vested only with the specially granted powers; and as to the second, because its particular jurisdiction is prescribed. But this is not true of the Executive department.

The article and. section organizing that department begins with saying, “the executive power shall be vested in the President;” and then proceeds to prescribe the mode of his election; and although pointing out certain particular powers, contains no words limiting him to such powers alone. Nor could this have been matter done without giving to the article the prolixity of a code. The true rule of construction is therefore thought to be that all powers of an executive nature, not denied to the President or given with limitations, and not inconsistent with the general character of the Government, are in the President by force of the terms, “the executive power shall be vested in a President.” This rule was long since laid down by Alexander Hamilton, one of the chief founders of the Constitution, and one of the ablest of its defenders whilst it was under the consideration of the people. The proclamation of neutrality issued by General Washington in April, 1793, was bitterly assailed at the time as being beyond his constitutional authority. Hamilton, in a series of letters under the signature of “Pacificus,” defended it, and in the first of the series laid down the rule here stated. He maintained that the power there exercised was in its nature executive, and therefore in the President, and referred to the different terms in which the powers are granted to Congress and the President respectively, by the first and second articles, in order to show that although the particular power was not given to the President by specific terms, it was given by force of the general grant of the executive power. His reasoning, which would seem to be conclusive, was this:

The difficulty of a complete enumeration of all the cases of Executive authority would naturally dictate the use of general terms, and would render it improbable that a specification of certain particulars was designed as a substitute for these terms when antecedently used. The different mode of expression employed in the Constitution in regard to the two powers, the legislative and the executive, serves to confirm this inference. In the article which gives [193] the legislative powers of the Government the expressions are, ‘all legislative powers herein granted shall be vested in the Congress of the United States.’ In that which grants the executive power, the expressions are, ‘the executive power shall be vested in a President of the United States.’ The enumeration ought, therefore, to be considered as intended merely to specify the principal articles implied in the definition of executive power; leaving the rest to flow from the general grant of that power, interpreted in conformity with other parts of the Constitution, and with the principles of free government. The general doctrine of our Constitution, then, is that the executive power of the United States is vested in the President; subject only to the exceptions and qualifications which are expressed in the instrument.

These letters were replied to by Mr. Madison, with the ability which ever characterized him, in a series of others under the signature of “Helvidius;” and although he contested almost every other constitutional proposition of Hamilton, he nowhere called into doubt the correctness of his rule of construction. His silence under the circumstances must, therefore, be assumed as his assent to the rule; and the rule, therefore, stands on the highest authority we can have — that of the two ablest and purest statesmen the country has ever possessed, and who were especially conspicuous in giving us the Constitution which, uniting us as one people for all purposes requiring such a union, has so exclusively and greatly promoted our power and prosperity as a nation. The rule, too, was maintained in the strongest terms by President Jackson in his protest of the 15th of April, 1834.

That rule, then, being the true one, the only question in the case is, whether the power which the President is exercising is in its nature an executive one. That it is, has been, it is believed, satisfactorily shown; and under the rule stated by Hamilton, impliedly sanctioned by Madison, and expressly adopted by Jackson, it is in the President by force of the general delegation to him of the Executive power.

Upon the whole, then, the President, it is thought, has had no doubt, and is believed not now to entertain any, as to the authority which he has exercised, and will, it is supposed, continue to exercise. On such a point he would naturally be guided by such general reasoning as is here assigned — the authority of Gen. Jackson's example at New Orleans, (not mentioned by the Chief-Justice,) afterwards impliedly sanctioned by Congress, who indemnified him for its exercise, and the solemn decision of the Supreme Court, before mentioned, pronounced thirteen years since, and never afterwards questioned by that or any other tribunal — rather than by the authorities relied on by the Chief-Justice, that is to say, a clearly extra-judicial observation of Chief-Justice Marshall, a mere doubt of Mr. Justice Story, an alleged doubt of Mr. Jefferson, nowhere, however, proved to have been felt, of the legality of Gen. Wilkinson's conduct at New Orleans in 1807--conduct in fact approved by him, and not disapproved of by any Congressional legislation — a commentary on the English form of government, a Government resting as to nearly all its powers upon usage and precedent, or to the otherwise unsupported authority of the Chief-Justice, and especially when, as in this instance, he seems to have departed from or forgotten the doctrines he maintained in the case in Howard.

If with the opinion the President now is supposed to hold, to use in part the words of President Jackson, in the. protest referred to, he should “be induced to act in a matter of official duty contrary to the honest convictions of his own mind, in compliance with the” (opinion of the Chief-Justice) “the constitutional independence of the Executive department would be as effectually destroyed and its power as effectually transferred to” (the Judiciary department) “as if that end had been accomplished by an amendment to the Constitution.”

This paper has been made the more elaborate because of the justly high character of the Chief-Justice of the United States, and because of a desire to satisfy the judgment of the people of the country upon the point in issue between that functionary and the President; a people whom the President is faithfully serving with all the ability he possesses in this crisis of their Government, and whom he hopes to be able, when he retires from the elevated office in which their confidence has placed him, to leave in the peaceful and happy enjoyment of an unbroken Union, and an undisturbed and faithful execution of the laws.

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