extend; and the great importance which the framers of the Constitution attached to the privilege of the writ of habeas corpus, to protect the liberty of the citizen, is proved by the fact that its suspension, except in cases of invasion and rebellion, is first in the list of prohibited powers; and even in these cases the power is denied and is exercise prohibited unless the public safety shall require it. It is true that in the cases mentioned Congress is of necessity the judge of whether the public safety does or does not require it; and its judgment is conclusive. But the introduction of these words is a standing admonition to the legislative body of the danger of suspending it and of the extreme caution they should exercise before they give the Government of the United States such power over the liberty of a citizen.

It is the second article of the Constitution that provides for the organization of the Executive Department, and enumerates the powers conferred on it, and prescribes its duties. And if the high power over the liberty of the citizens now claimed was intended to be conferred on the President, it would undoubtedly be found in plain words in this article. But there is not a word in it that can furnish the slightest ground to justify the exercise of the power.

The article begins by declaring that the Executive power shall be vested in a President of the United States of America, to hold his office during the term of four years, and then proceeds to describe the mcde of election, and to specify in precise and plain words the powers delegated to him and the duties imposed upon him. And the short term for which he is elected, and the narrow limits to which his power is confined, show the jealousy and apprehensions of future danger which the framers of the Constitution felt in relation to that department of the Government, and how carefully they withheld from it many of the powers belong ing to the executive branch of the English Government which were considered as dangerous to the liberty of the subject, and conferred (and that in clear and specific terms) those powers only which were deemed essential to secure the successful operation of the Government.

He is elected, as I have already said, for the brief term of four years, and is made personally responsible, by impeachment, for malfeasance in office. He is, from necessity, and the nature of his duties, the Commander-in-Chief of the army and navy, and of the militia, when called into actual service. But no appropriation for the support of the army can be made by Congress for a longer term than two years, so that it is in the power of the succeeding House of Representatives to withhold the appropriation for its support, and thus disband it, if, in their judgment, the President used or designed to use it for improper purposes. And although the militia, when in actual service, are under his command, yet the appointment of the officers is reserved to the States, as a security against the use of the military power for purposes dangerous to the liberties of the people or the rights of the States.

to take care that they be faithfully carried into execution as they are expounded and adjudged by the coordinate branch of the Government to which that duty is assigned by the Constitution. It is thus made his duty to come in aid of the judicial authority, if it shall be resisted by a force too strong to be overcome without the assistance of the Executive arm. But in exercising this power, he acts in subordination to judicial authority, assisting it to execute its process and enforce its judgments.

With such provisions in the Constitution, expressed in language too clear to be misunderstood by any one, I can see no ground whatever for supposing that the President, in any emergency or in any state of things, can authorize the suspension of the privilege of the writ of habeas corpus, or arrest a citizen, except in aid of the judicial power. Île certainly does not faithfully execute the laws if he takes upon himself legislative power by suspending the writ of habeas corpus-and the judicial power, also, by arresting and imprisoning a person without due process of law. Nor can any argument be drawn from the nature of sovereignty, or the necessities of government for self-defense, in times of tumult and danger. The Government of the United States is one of delegated and limited powers. It derives its existence and authority altogether from the Constitution, and neither of its branches-executive, legislative, or judicial-can exercise any of the powers of government beyond those specified and granted. For the tenth article of the amendments to the Constitution, in express terms, provides that "the powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States, respectively, or to the people."

Indeed, the security against imprisonment by Executive authority, provided for in the fifth article of the Amendments of the Constitution, which I have before quoted, is nothing more than a copy of a like provision in the English constitu tion, which had been firmly established before the Declaration of Independence.

Blackstone, in his Commentaries, (1st vol., 137,) states it in the following words:

"To make imprisonment lawful, it must be either by process from the courts of judicature or by warrant from some legal officer having authority to commit to prison.”

And the people of the United Colonies, who had themselves lived under its protection while they were British subjects, were well aware of the necessity of this safeguard for their personal liberty. And no one can believe that in framing the Government intended to guard still more offciently the rights and the liberties of the citizens against executive encroachment and oppression, they would have conferred on the President a power which the history of England had proved to be dangerous and oppressive in the hands of the Crown, and which the people of England had compelled it to surrender after a long and obstinate struggle on the part of the English Executive to usurp and retain it.

The right of the subject to the benefit of the writ of haSo, too, his powers in relation to the civil duties and au- beas corpus, it must be recollected, was one of the great thority necessarily conferred on him are carefully restrict-points in controversy during the long struggle in England ed, as well as those belonging to his military character. He between arbitrary government and free institutions, and cannot appoint the ordinary officers of Government, nor must therefore have strongly attracted the attention of make a treaty with a foreign nation or Indian tribe with-statesmen engaged in framing a new and, as they supposed, out the advice and consent of the Senate, and cannot ap- a freer government than the one which they had thrown point even inferior officers unless he is authorized by an off by the Revolution. For, from the earliest history of act of Congress to do so. He is not empowered to arrest the common law, if a person was imprisoned-no matter any one charged with an offence against the United States, by what authority-he had a right to the writ of habeas and whom he may, from the evidence before him, believe corpus to bring his case before the King's Bench, and, if to be guilty; nor can he authorize any officer, civil or no specific offence was charged against him in the warrant military, to exercise this power, for the fifth article of the of commitment, he was entitled to be forthwith discharged; amendments to the Constitution expressly provides that no and if an offence was charged which was bailable in its person "shall be deprived of life, liberty, or property with- character the court was bound to set him at liberty on out due process of law;" that is, judicial process. And even bail. And the most exciting contests between the Crown if the privilege of the writ of habeas corpus was suspended and the people of England from the time of Magna Charta by act of Congress, and a party not subject to the rules and were in relation to the privilege of this writ, and they conarticles of war was afterwards arrested and imprisoned by tinued until the passage of the statute of 31st Charles 2d, regular judicial process, he could not be detained in prison or commonly known as the great habeas corpus act. This brought to trial before a military tribunal, for the article in statute put an end to the struggle, and finally and firmly the Amendments to the Constitution immediately following secured the liberty of the subject from the usurpation and the one above referred to-that is, the sixth article-pro- oppression of the executive branch of the Government. vides that, "in all criminal prosecutions, the accused shall en- It nevertheless conferred no new right upon the subject, joy the right to a speedy and public trial by an impartial jury but only secured a right already existing; for, although of the State and district wherein the crime shall have been the right could not justly be denied, there was often no efcommitted, which district shall have been previously ascer- fectual remedy against its violation. Until the statute of tained by law, and to be informed of the nature and cause the 13th of William III the judges held their offices at the of the accusation; to be confronted with the witnesses against pleasure of the King, and the influence which he exercised him; to have compulsory process for obtaining witnesses in over timid, time-serving, and partisan judges often induced his favor, and to have the assistance of counsel for his them, upon some pretext or other, to refuse to discharge the party although he was entitled to it by law, or delayed their decisions from time to time, so as to prolong the imprisonment of persons who were obnoxious to the King for their political opinions, or had incurred his resentment in any other way.

defence."

And the only power, therefore, which the President possesses, where the "life, liberty, or property" of a private citizen is concerned, is the power and duty prescribed in the third section of the second article, which requires "that he shall take care that the laws be faithfully executed." He is not authorized to execute them himself, or through agents or officers, civil or military, appointed by himself, but he is

The great and inestimable value of the habeas corpus act of the 31st Charles II is that it contains provisions which compel courts and judges, and all parties concerned, to per

statute.

Blackstone, in his Commentaries on the laws of England, (3d vol., 133, 134) says:

To assert an absolute exemption from imprisonment in all cases is inconsistent with every idea of law and political society, and in the end would destroy all civil liberty, by rendering its protection impossible.

form their duties promptly, in the manner specified in the ingly, no power in England short of that of Parliament, can suspend or authorize the suspension of the writ of A passage in Blackstone's Commentaries, showing the an-habeas corpus. I quote again from Blackstone (1 Comm., cient state of the law upon this subject, and the abuses 136:) "But the happiness of our Constitution is, that it is which were practiced through the power and influence of not left to the executive power to determine when the the Crown, and a short extract from Hallam's Constitu- danger of the State is so great as to render this measure tional History, stating the circumstances which gave rise to expedient. It is the Parliament only or legislative power the passage of this statute, explain briefly, but fully, all that that, whenever it sees proper, can authorize the Crown, by is material to this subject. suspending the habeas corpus for a short and limited time, to imprison suspected persons without giving any reason for so doing." And if the President of the United States may suspend the writ, then the Constitution of the United States has conferred upon him more regal and absolute power over the liberty of the citizen than the people of England have thought it safe to entrust to the Crown--a power which the Queen of England cannot exercise at this day, and which could not have been lawfully exercised by the sovereign even in the reign of Charles the First. But I am not left to form my judgment upon this great question from analogies between the English Government and our own, or the commentaries of English jurists, or the decisions of English courts, although upon this subject they are entitled to the highest respect, and are justly regarded and received as authoritative by our courts of justice. To guide me to a right conclusion, I have the Commentaries on the Constitution of the United States of the late Mr. Justice Story, not only one of the most eminent jurists of the age, but for a long time one of the brightest ornaments of the Supreme Court of the United States, and also the clear and authoritative decision of that Court itself, given more than half a century since, and conclusively establishing the principles I have above stated. Mr. Justice Story, speaking in his Commentaries of the habeas corpus clause in the Constitution, says:

But the glory of the English law consists in clearly dedefining the times, the causes, and the extent, when, wherefore, and to what degree the imprisonment of the subject may be lawful. This it is which induces the absolute necessity of expressing upon every commitment the reason for which it is made, that the court upon a habeas corpus may examine into its validity, and, according to the circumstances of the case, may discharge, admit to bail, or remand the prisoner. "And yet early in the reign of Charles I the Court of King's Bench, relying on some arbitrary precedents, (and those perhaps misunderstood,) determined that they would not, upon a habeas corpus either bail or deliver a prisoner, though committed without any cause assigned, in case he was committed by the special command of the King or by the Lords of the Privy Council. This drew on a Parliamentary inquiry, and produced the Petition of Rights-3 Chas. I-which recites this illegal judgment, and enacts that no freeman hereafter shall be so imprisoned or detained. But when in the following year Mr. Solden and others were commited by the Lords of the Council in pursuance of his Majesty's special command, under a general charge of 'notable contempts, and stirring up sedition against the King and the Government,' the judges delayed for two terms (including also the long vacation) to deliver an opinion how far such a charge was bailable. And when at length they agreed that it was, they however annexed a condition of finding sureties for their good behavior, which still protracted their imprisonment; the Chief Justice, Sir Nicholas Hyde, at the same time declaring that if they were again remanded for that cause perhaps the court would not afterward grant a habeas torps being already acquainted with the cause of the imprisonment. But this was heard with indignation and astonishment by every lawyer present, according to Mr. Selden's own account of the matter, whose resentiment was not led at the distance of four and twenty years." It is worthy of remark that the offences charged against the prisoner in this case, and relied on as a justification for his arrest and imprisonment, in their nature and character, d in the loose and vague manner in which they are stated, bear a striking resemblance to those assigned in the warrant for the arrest of Mr. Selden. And yet, even at that day, the warrant was regarded as such a flagrant violation of the rights of the subject that the delay of the time-serving judges to set him at liberty upon the habeas corpus issued in his behalf excited universal indignation at the bar. The extract from Hallam's Constitutional History is equally pressive end equally in point. It is in vol. 4, p. 14: "It is a very common mistake, and not only among foreigners, but many from whom some knowledge of our constitutional laws might be expected, to suppose that this statute of Charles II enlarged in a great degree our liberties, and forms a sort of epoch in their history. But though ▲ very beneficial enactment, and eminently remedial in Ey cases of illegal imprisonment, it introduced no new Principle, nor conferred any right upon the subject. From the earliest records of the English law, no freeman could be decated in prison, except upon a criminal charge or con- "If at any time the public safety should require the sus Vict, or for a civil debt. In the former case it was always pension of the powers vested by this act in the courts of the in his power to demand of the Court of King's Bench a writ United States, it is for the Legislature to say so. That habeas corphis ad subjiciendum directed to the person de- question depends on poltical considerations, on which the taining him in custody, by which he was enjoined to bring Legislature is to decide. Until the legislative will be exup the body of the prisoner with the warrant of commit-pressed, this court can only see its duty, and must obey Beat, that the court might judge of its sufficiency, and reHad the party, admit him to bail, or discharge him, accordtag to the nature of the charge. This writ issued of right, and could not be refused by the court. It was not to bestow an immunity from arbitrary imprisonment, which is abundantly provided for in Magna Charta, (if indeed it was not more ancient,) that the statute of Charles II was enacted, bat to cut off the abuses by which the Government's lust of power and servile subtlety of Crown lawyers had impaired so fundamental a privilege."

"It is obvious that cases of a peculiar emergency may arise, which may justify, nay, even require, the temporary suspension of any right to the writ. But as it has frequently happened in foreign countries, and even in England, that the writ has, upon various pretexts and occasions, been suspended, whereby persons apprehended upon suspicion have suffered a long imprisonment, sometimes from design, and sometimes because they were forgotten, the right to suspend it is expressly confined to cases of rebellion or invasion, where the public safety may require it. A very just and wholesome restraint, which cuts down at a blow a fruitful means of oppression, capable of being abused in bad times to the worst of purposes. Hitherto no suspension of the writ has ever been authorized by Congress since the establishment of the Constitution. It would seem, as the power is given to Congress to suspend the writ of habeas corpus in cases of rebellion or invasion, that the right to judge whether the exigency had arisen must exclusively belong to that body."-3 Story's Com. on the Constitution, section 1,336.

And Chief Justice Marshall, in delivering the opinion of the Supreme Court in the case ex parte Bollman and swartwout, uses this decisive language, in 4 Cranch, 95:

"It may be worthy of remark, that this act, (speaking of the one under which I am proceeding.) was passed by the First Congress of the United States, sitting under a Constitution which had declared 'that the privilege of the writ of habeas corpus should not be suspended unless when, in cases of rebellion or invasion, the public safety may require it.' Acting under the immediate influence of this injunc tion, they must have felt with peculiar force the obligation of providing efficient means by which this great constitutional privilege should receive life and activity; for if the means be not in existence, the privilege itself would be lost, although no law for its suspension should be enacted. Under the impression of this obligation they give to all the courts the power of awarding writs of habeas corpus." And again, in page 101:

the laws."

I can add nothing to these clear and emphatic words of my great predecessor.

But the documents before me show that the military authority in this case has gone far beyond the mere suspension of the privilege of the writ of habeas corpus. It has, by force of arms, thrust aside the judicial authorities and officers to whom the Constitution has confided the power and duty of interpreting and administering the laws, and substituted a military government in its place, to be administered and While the value set upon this writ in England has been executed by military officers. For at the time these progreat that the removal of the abuses which embarrassed ceedings were had against John Merryman, the District its enjoyment have been looked upon as almost a new grant Judge of Maryland-the commissioner appointed under the of liberty to the subject, it is not to be wondered at that act of Congress-the District Attorney and the Marshal, all the continuance of the writ thus made effective should resided in the city of Baltimore, a few miles only from the have been the object of the most jealous care. Accord-home of the prisoner. Up to that time there had never been

And these great and fundamental laws, which Congress itself could not suspend, have been disregarded and sus-others, either of them or both of them together. We have pended, like the writ of habeas corpus, by a military order, supported by force of arms. Such is the case now before me; and I can only say that if the authority which the Constitution has confided to the judiciary department and judicial officers may thus upon any pretext or under any circumstances be usurped by the military power at its discretion, the people of the United States are no longer living under a Government of laws, but every citizen holds life, liberty, and property at the will and pleasure of the army officer in whose military district he may happen to

delegate all its powers to this Government, in any or all its

departments.

section 2:

The Government, as a whole, is limited: and limited in all its departments. It is the especial function of the judiciary to hear and determine cases, not to "establish principles," Dorsettle questions," so as to conclude any person but the parties and privies to the cases adjudged. Its powers are pecially granted and defined by the Constitution, article 3, The judicial power shall extend to all cases in law and equity arising under this Constitution, the laws of the United States, and treaties made and which shall be made under their authority; to all cases affecting ambassadors, other ministers, and consuls; to all cases of admiralty and maritime jurisdiction; to controversies to which the United States shall be a party; to controversies between two or more States; between States and citizens of other States; between citizens of different States; between citizens of the same State claiming lands under grants of different States, and between a State, or the citizens thereof, and foreign States, citizens, or subjects."

And that is the sum of its powers, ample, and efficient for all the purposes of distributive justice among individual parties, but powerless to impose rules of action and of judgment upon the other departments. Indeed, it is not itself bound by its own decisions, for it can, and often does, overrule and disregard them, as in common honesty it ought to do, whenever it finds, by its after and better lights, that its former judgments were wrong.

Of all the departments of the Government the President is the most active, and the most constant in action. He is called "the Executive:" and so in fact he is, and much more also, for the Constitution has imposed upon him many important duties, and granted to him great powers which are in their nature not executive-such as the veto power, the power to send and receive ambassadors, the power to make treaties, and the power to appoint officers. This last is not more an executive power when used by the President than it is when it is exercised by either House of Congress, by the courts of justice, or by the people at large.

without, as far as I know, a question of its legality. To call as is sometimes done, the judiciary the civil power, and the President the military power, seems to me at once a mistake of fact and an abuse of language.

While the judiciary and the President, as departments of the General Government, are co-ordinate, equal in dig nity and power, and equally trusted by the law in their respective spheres, there is, nevertheless, a marked diver sity in the character of their functions and their modes of action. The judiciary is, for the most part, passive. It rarely, if ever, takes the initiative; it seldom or never be gins an operation. Its great function is judgment, and, in the exercise of that function, it is confined almost exclusively to cases not selected by itself, but made and submitted by others. The President, on the contrary, by the very nature of his office, is active; he must often take the initiative; he must begin operations. His great function is execution, for he is required by the Constitution (and he is the only department that is so required) to "take care that the laws (all the laws be faithfully executed ;" and in the exercise of that function his duties are co-extensive with the laws of the land.

Often he comes to the aid of the judiciary in the execution of its judgments; and this is only a part, and a small part, of his constitutional duty, to take care that the laws be faithfully executed. I say it is a small part of his duty, because for every instance in which the President executes the judgment of a court there are a hundred instances in which he executes the law without the intervention of the judiciary, and without referring at all to its functions. I have premised this much in order to show the separate and independent character of the several departments of our Government, and to indicate the inevitable differences in their modes of action and the characteristic diversity of the subjects upon which they operate; and all this as a foundation for the answers which I will now proceed to give to the particular questions propounded to me.

The Constitution requires the President, before he enters upon the execution of his office, to take an oath that he "will faithfully execute the office of President of the United States, and will, to the best of his ability, preserve, protect, and defend the Constitution of the United States."

As to the first question, I am clearly of opinion that, in a time like the present, when the very existence of the na tion is assailed by a great and dangerous insurrection, the The President is a department of the Government, and, President has the lawful discretionary power to arrest although the only department which consists of a single and held in custody persons known to have criminal interman, he is charged with a greater range and variety of pow-course with the insurgents, or persons against whom there ers and duties than any other department. He is a civil is probable cause for suspicion of such criminal complicity. magistrate, not a military chief; and in this regard we see a And I think this position can be maintained, in view striking proof of the generality of the sentiment prevailing of the principles already laid down, by a very plain arguin this country at the time of the formation of our Govern- ment. ment, to the effect that the military ought to be held in striet subordination to the civil power; for the Constitution, while it grants to Congress the unrestricted power to declare war, to raise and support armies, and to provide and maintain a navy, at the same time guards carefully against the abuse of that power, by withholding from Congress and from the army itself the authority to appoint the chief commander of a force so potent for good or evil to the State. The Constitution provides that "the President shall be Commander-in-Chief of the Army and Navy of the United States, ad of the militia of the several States when called into the actral service of the United States." And why is this? Surely not because the President is supposed to be, or commonly is, in fact, a military man, a man skilied in the art of war, and qualified to marshal a host in the field of battle. No, it is for quite a different reason; it is, that whatever skal soldier may lead our armies to victory against a foreiza foe, or may quell a domestic insurrection, however high be may raise his professional renown, and whatever martial gory he may win, still he is subject to the orders of the civil Bagistrate, and he and his army are always "subordinate to the civil power."

And hence it follows that whenever the President, (the dvil magistrate.) in the discharge of his constitutional duty to take care that the laws be faithfully executed," bas occasing to use the army to aid him in the performance of that duty, he does not thereby lose his civil character and become a soldier, subject to military law, and liable to be tried by a court martial, any more than does a civi! out lose its legal and pacific nature, and become military and belligerent by calling out the power of the country to enforte its decrees. The civil magistrates, whether judicial or executive, must of necessity employ physical power to aid them in enforcing the laws, whenever they have to deal with disobedient and refractory subjects, and their legal power and right to do so is unquestionable. The right of the courts to call ont the whole power of the country to enforce their judgments is as old as the common law; and the right of the President to use force in the performance of his legal duties is not only inherent in his office, but has been frequently recognized and aided by Congress. One striking example of this is the act of Congress of March 3, 1907, (2 Stat., 445,) which empowered the President, without the intervention of any court, to use the marshal, and, if he be insufficient, to use the army, summararily to expel intruders and squatters upon the public lands. And that power has been frequently exercised,

The duties of the office comprehend all the executive power of the nation, which is expressly vested in the President by the Constitution, (article 2, section 1,) and also all the powers which are specially delegated to the President, and yet are not, in their nature, executive powers; for example, the veto power, the treaty-making power, the appointing power, the pardoning power. These belong to that class which in England are called prerogative powers, inherent in the Crown. And yet the framers of our Constitution thought proper to preserve them and to vest them in the President, as necessary to the good government of the country. The executive powers are granted generally and without specification; the powers not execu tive are granted specially, and for purposes obvious in the context of the Constitution. And all these are embraced within the duties of the President, and are clearly within that clause of his oath which requires him to "faithfully execute the office of President."

The last clause of the oath is peculiar to the President. All the other officers of Governmeut are required to swear only "to support this Constitution;" while the President must swear to "preserve, protect, and defend" it, which implies the power to perform what he is required in so solemn a manner to undertake. And then follows the broad and compendions injunction to "take care that the laws be faithfully executed." And this injunction, embracing as it does all the laws--Constitution, treaties, statutes-is addressed to the President alone, and not to any other department or office of the Government. And this constitutes him, in a peculiar manner, and above all other officers, the guardian of the Constitution-its preserver, protector, and defender. It is the plain duty of the President (and his peculiar duty, above and beyond all other departments of the Government) to preserve the Constitution and execute the laws all over the nation; and it is plainly impossible for him to perform this duty without putting down rebellion, insurrec tion, and all unlawful combinations to resist the General Government. The duty to suppress the insurrection being obvions and imperative, the two acts of Congress, of 1795 and 1807, come to his aid, and furnish the physical force which he needs to suppress the insurrection and execute the

submit implicitly to his judgment, and, in case of disobe dience, treat him as a criminal, in contempt of a superior authority, and punish him as for a misdemeanor. by fine and imprisonment. It is no answer to say, as iris sometimes beea said, that although the writ of habeas corpus cannot be issued and enforced against the President himself, yet that it can be against any of his subordinates; for that abandons the principle assumed, of giving relief in all cases" of imprisonment, by color of authority of the United States, and attempts to take an untenable distinction between the person of the President and his office and legal power. The law takes no such distinction, for it is no respecter of persons. The President, in the arrest and imprisonment of men, must, almost always, act by subordinate agents; and yet the thing done is no less his act than if done by his own hand. But it is possible for the President to be in the actual custody of a prisoner, taken in civil war, or arrested on suspicion of being a secret agent and abettor of rebellion, and in that case the writ must be unavailing, unless it run against the President himself. Besides the whole subject-matter is political, and not judicial. The insurrection itself is purely political. Its object is to destroy the political government of this nation, and to esthe President, as the chief civil magistrate of the nation, and the most active department of the Government, is eminently and exclusively political in all its principal functions. As the political chief of the nation, the Constitution charges quires him to take care that the laws be faithfully executed And in that character, and by the aid of the acts of Congres of 1795 and 1807, he wages open war against armed rebellion, and arrests and holds in safe custody those whom, in the exercise of his political discretion, he believes to be friends of and accomplices in the armed insurrection, which it is his especial political duty to suppress. He has no judicial powers. And the Judiciary Department has no political powers, and claims none, and therefore (as well as for other reasons already assigned) no court or judge can take cognizance of the political acts of the President, or undertake to revise and reverse his political decisions.

The argument may be briefly stated thus: It is the President's bounden duty to put down the insurrection, as, in the language of the act of 1795, the "combinations are too powerful to be suppressed by the ordinary course of judicial proceedings, or by the powers vested in the marshals." And this duty is imposed upon the President for the very reason that the courts and the marshals are too weak to perform it. The manner in which he shall perform that duty is not prescribed by any law, but the means of performing it are given in the plain language of the statutes, and they are all means of force the militia, the Army, and the Navy. The end, the suppression of the insurrection, is required of him; the means and instruments to suppress it are lawfully in his hands; but the manner in which he shall use them is not prescribed, and could not be prescribed, without a foreknowledge of all the future changes and contingencies of the insurrection. He is therefore necessarily thrown upon his discretion as to the manner in which he will use his means to meet the varying exigencies as they arise. If the insurgents assail the nation with an army he may find it best to meet them with an army, and suppress the insurrec-tablish another political government upon its ruins. And tion on the field of battle. If they seek to prolong the rebellion and gather strength by intercourse with foreign uations, he may choose to guard the coast and close the ports with a navy, as one of the most efficient means to suppress the insurrection. And if they employ spies and emis-him with its preservation, protection, and defense, and re saries to gather information, to forward secret supplies, and to excite new insurrections in aid of the original rebellion, he may find it both prudent and humane to arrest and imprison them. And this may be done either for the purpose of bringing them to trial and condign punishment for their crimes, or they may be held in custody for the milder end of rendering them powerless for mischief until the exigency is past. In such a state of things the President must, of necessity, be the sole judge, both of the exigency which requires him to act, and of the manner in which it is most prudent for him to employ the powers entrusted to him, to enable him to discharge his constitutional and legal duty; that is, to suppress the insurrection and execute the laws. And this discretionary power of the President is fully admitted by the Supreme Court in the case of Martin vs. Mott. (12 Wheaton's Reports, page 19; 7 Curtis, 10.)

This is a great power in the hands of the Chief Magistrate; and because it is great, and is capable of being perverted to evil ends, its existence has been doubted or denied. It is said to be dangerous in the hands of an ambitious and wicked President, because he may use it for the purposes of oppression and tyranny. Yes, certainly it is dangerous; all power is dangerous, and for the all-pervading reason that all power is liable to abuse; all the recipients of human power are men, not absolutely virtuous and wise. Still it is a power necessary to the piece and safety of the country, and undeniably belongs to the Government, and therefore must be excrcised by some department or officer thereof.

Why should this power be denied to the President, on the ground of its liability to abuse, and not denied to the other departments on the same ground? Are they more exempt than he is from the frailties and vices of humanity? Or are they more trusted by the law than he is trusted, in their several spheres of action? If it be said that a President may be ambitious and unscrupulous, it may be said with equal truth that a legislature may be factious and unprincipled, and a court may be venal and corrupt. But these are crimes never to be presumed, even against a private man, and much less against any high and highly trusted public functionary. They are crimes, however, recognized as such, and made punishable by the Constitution; and whoever is guilty of them, whether a president, a senator, or a judge, is liable to impeachment and condem

nation.

As to the second question: Having assumed, in answering the first question, that the President has the legal discretionary power to arrest and imprison persons who are guilty of holding criminal intercourse with men engaged in a great and dangerous insurrection, or persons suspected with "probable cause" of such criminal complicity, it might seem unnecessary to go into any prolonged argument to provo that in such a case the President is fully justified in refusing to obey a writ of habeas corpus, issued by a court or judge, commanding him to produce the body of his prisoner, and state when he took him, and by what authority, and for what cause he detains him in custody, and then yield himself to judgment, "to do, submit to, and receive whatsoever the judge or court, awarding the writ, shall consider in that behalf."

If it is truc, as I have assumed, that the President and the Judiciary are co-ordinate departments of Government, and the one not subject to the other, I do not understand how it can be legally possible for a judge to issue a command to the President to come before him ad subjiciendum, that is to

The jurisdiction exercised under the writ of habeas cor pus is, in the nature of an appeal, (4 Cr. 75.) for, as far as concerns the right of the prisoner, the whole object of the process is to re-examine and reverse or affirm the acts of the person who imprisoned him. And I think it will hardly be seriously affirmed that a judge, at chambers, can enter tain an appeal, in any form, from a decision of the Fresident of the United States, and especially in a case purely political.

There is but one sentence in the Constitution which mentions the writ of habeas corpus-art. 1. sec. 9, clause — which is in these words:

"The privileges of the writ of habeas corpus shall not be suspended unless when, in cases of rebellion or invasion, the public safety may require it.”

Very learned persons have differed widely about the meaning of this short sentence, and I am by no means confident that I fully understand it myself. The sententious language of the Constitution, in this particular, must, I suppose, be interpreted with reference to the origin of our people, their historical relations to the mother country, and their inchoate political condition at the moment when our Constitution was formed. At that time the United tates, as a nation, had no common law of its own, and no statutory provision for the writ of habeas corpus. Still the people, English by descent, even while in open rebellion against the English Crown, claimed a sort of historical right to the forms of Eaglish law and the guarantees of English freedom. They knew that the English Government had, more than once, assumed the power to imprison whem it would, and hold them, for an indefinite time, beyond the reach of judicial examination; and they desired, no doubt, to interpose a guard against the like abuses in this country; and hence the clause of the Constitution now under consideration. But we must try to construe the words, vague and indeterminate as they are, as we find them. "The privilege of the writ of habeas corpus shall not be suspended," &c. Does that mean that the writ itself shall not be issued, or that, being issued, the party shall derive no benefit from it? Suspended-does that mean delayed, hung up for a time, or altogether denied? The writ of habeas corpus-which writ? In England there were many writs called by that name, and used by the courts for the more convenient exercise of their various powers: and our own courts now, by acts of Congress-the Judiciary act of 1789, sec. 14, and the act of March 2, 1833, sec. 7-have, 1 believe, equivalent powers.

It has been decided by the Supreme Court, and I doubt not correctly-see Bollman Swartwout's case (4 Cr., 93)— that "for the meaning of the term habeas corpus resort must be had to the common law, but the power to award the writ by any of the courts of the United States must be given by written law." And the same high Court, judging, no doubt, by the history of our people and the circumstances