demanded that the principle under which the neutral flag covers neutral merchandise, unless contraband of war, should be applied everywhere and by every one to United States vessels.

Concerning the third proposition, in regard to the inviolability of private property on the high seas it is of urgent necessity for the great Powers that it be recognized by America. If doubts still exist as to that principle being carried out, the commercial enterprises of neutral States will be exposed to inevitable inconvenience, and we may have cause to fear collisions even of a very serious nature, and which we would desire might be prevented in time.

I will experience a real satisfaction in receiving from you soon the news that the overtures and proposals with which I have just charged you have met with a promising reception. SCHLEINITZ.

CASSIUS M. CLAY'S MEMORANDUM.

The "memorandum" referred to on page 111, addressed by Mr. Clay to a Nashville editor-reciting the result of an interview held with the President, at the instigation of said editor-was as follows: "WASHINGTON, April 20th, 1861. "The undersigned, on all the responsibilities of a Kentuckian, a patriot, and a man, desiring the perpetuation of the Union and the liberties of the people-opposed always to aggressive war, believing that civilization cannot be advanced by arms, but that only pre-existing ideas can be so fixed-in favor of peaceful emancipation by the will of the sovereignties, and against servile war and insurrections-asserts upon his own responsibility the policy of the Administration to be peace, if consistent with honor.

"1. He reasserts the avowals of President Lincoln in his inaugural address and late proclamation, to make war upon no State, much less upon Virginia or the Border States, whose Union men he wou'd conciliate and save as friends. For this reason he retires from Harper's Ferry as he did from Sumter, acting clearly on the defensive, that he might stand before mankind guiltless of this great fraternal suicide. For the same reason he refuses to avenge the blood of American citizens shed in Baltimore in the peaceful passage to the seat of the common Government.

"2. But the President will not, when pressed to the wall,

fail to assert to his full ability the power and safety of the National Government, unless the people, whose servant he is, shall otherwise decree.

"3. Any attack on the National forces or property in the District of Columbia, will be regarded as a declaration of war and a fatal blow at all hope of peace.

"4. He will not deceive Maryland or Virginia, or any State, by false professions; he will continue to strengthen his position in this place of National exclusive jurisdiction at all hazards, and by all the defensive means in his power, and this he feels abundantly able to do.

“5. Virginia and Maryland may keep the peace and give

time for the passions of men to cool by avoiding the invason of the District or obstructing our movements. Virginia must confine herself to her own soil.

OPINION OF THE ATTORNEY GENERAL ON
THE SUSPENSION OF THE WRIT OF
HABEAS CORPUS.

ATTORNEY GENERAL'S OFFICE,
WASHINGTON CITY, July 5th, 1861.

To the President:

SIR: You have required my opinion in writing upon the following questions:

"1. In the present time of a great and dangerous insur rection, has the President the discretionary power to cause to be arrested and hold in custody persons known to have criminal intercourse with the insurgents, or persons against whom there is probable cause for suspicion of such criminal complicity

"2. In such cases of arrest is the President justified in refusing to obey a writ of habeus corpus issued by a court or a judge, requiring him or his agent to produce the body of the prisoner, and show the cause of his caption and detention. to be adjudged and disposed of by such court or judge ?"

To make my answer to these questions at once consistent and plain, I find it convenient to advert to the great principle of government, as recognized and acted upon in most, if not all, the countries in Europe, and to mark the difference between that principle, and the great principle which lies at the bottom of our National Government.

Most European writers upon government assume, expressly or by implication, that every national gov ernment is, and must be, the full expression and representation of the nation which it governs, armed with all its powers and able to assert all its rights. In England, the form of whose government more nearly approximates our own, and where the rights, interests and powers of the people are more respected and cared for than in most of the nations of the European Continent, it has grown into an axiom that "the Parliament is omnipotent," that is, that it can do anything that is possible to be done by legis lation or by judgment. For all the ends of govern ment the Parliament is the nation. Moreover, in Europe generally, the sovereignty is vested visibly in some designated man or set of men, so that the subject people can see their sovereign as well as feel the workings of his power. But in this country it has been carefully provided otherwise. In the formation of our National Government our fathers were surrounded with peculiar difficulties, arising out of their novel, I may say unexampled, condition. In resolving to break the ties which had bound them to the British Empire, their complaints were levelled chiefly at the King, not the Parlia ment nor the people. They seem to have been act uated by a special dread of the unity of power, and hence, in framing the Constitution, they preferred to take the risk of leaving some good undone, for lack of power in the agent, rather than arm any government officer with such great powers for evil as are

implied in the dictatorial charge to "see that no damage comes to the Commonwealth."

Hence, keeping the sovereignty always out of sight, they adopted the plan of "checks and balances," forming separate departments of government, and giving each department separate and limited powers. These departments are co-ordinate and co-equal-that is, neither being sovereign, each is independent in its sphere, and not subordinate to the others, either of them or both of them together. We have three of these co-ordinate departments. Now, if we allow one of the three to determine the extent of its own powers, and also the extent of the powers of the other two, that one can control the whole government, and has, in fact, achieved the sovereignty.

We ought not to say that our system is perfect, for its defects (perhaps inevitable in all human things) are obvious. Our fathers, having divided the government into co-ordinate departments, did not even try (and if they had tried, would probably have failed) to create an arbiter among them to adjudge their conflicts and keep them within their respective bounds. They were left, by design, I suppose, each independent and free, to act out its own granted powers, without any ordained legal superior possessing the power to revise and reverse action. And this with the hope that the three Hepartments, mutually co-equal and independent, would keep each other within their proper spheres by their mutual antagonism—that is, by the system of checks and balances, to which our fathers were driven at the beginning, by their fear of the unity of power.

In this view of the subject it is quite possible for the same identical question (not case) to come up legitimately before each one of the three departments, and be determined in three different ways, and each decision stand irrevocable, binding upon the parties to each case; and that, for the simple reason that the departments are co-ordinate, and there is no ordained legal superior, with power to revise and reverse their decisions.

To say that the departments of our government are co-ordinate, is to say that the judgment of one of them is not binding upon the other two, as to the arguments and principles involved in the judgment. It binds only the parties to the case decided. But if, admitting that the departments of government are co-ordinate, it be still contended that the principles adopted by one department, in deciding a case properly before it, are binding upon another department, that obligation must of necessity be reciprocal-that is, if the President be bound by the principles laid down by the judiciary, so also is the judiciary bound by the principles laid down by the

President. And thus we shall have a theory of constitutional government flatly contradicting itself. Departments co-ordinate and co-equal, and yet reciprocally subordinate to each other! That cannot be. The several departments, though far from sovereign, are free and independent, in the exercise of the limited powers granted to them respectively by the Constitution. Our government indeed, as a whole, is not vested with the sovereignty, and does not possess all the powers of the nation. It has no powers but such as are granted by the Constitution; and many powers are expressly withheld. The nation certainly s co-equal with all other nations, and has equal powers, but it has not chosen to delegate all its powers to this government, in any or all of its departments.

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," nor "settle questions," so as to conclude any person but the parties and privies to the cases adjudged. Its powers are specially granted and defined by the Constitution, article 3, section 2:

"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 exercised by either House of Congress, by the courts of justice, or by the people at large.

The President is a department of the Government; and, although the only department which consists of a single man, he is charged with a greater range and variety of powers and duties than any other department. He is a civil magistrate, not a military chief; and in this regard we see a striking proof of the generality of the sentiment prevailing in this country at the time of the formation of our Government, to the effect that the military ought to be held in strict 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 for evil to the State. The Constitution provides that the President shall be Commander-in-Chief of the army and navy of the United States, and of the militia of the several States when called into the actual 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 skilled 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 skillful soldier may lead our armies to victory against a foreign foe, or may quell a domestic insurrection; however high he may raise his professional renown, and whatever martial glory he may win, still he is subject to the orders of the civil magistrate, and he and his army are always "subordinate to the civil power."

in the performance of his legal duties is not only inherent in his office, but has been frequently recog nized and aided by Congress. One striking example of this is the act of Congress of March 3d, 1807, (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, summarily to expel intruders and squatters upon the public lands. And that power has been frequently exercised, 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 depart ments of the General Government, are co-ordinate, equal in dignity and power, and equally trusted by the law, in their respective spheres, there is, never theless, a marked diversity 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 begins 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, bis duties are coex. tensive 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 judg ment 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.

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.

As to the first question, I am clearly of opinion that, in a time like the present, when the very ex istence of the nation is assailed, by a great and dan gerous insurrection, the President has the lawful,

483

discretionary power to arrest and hold in custody persons known to have criminal intercourse with the insurgents, or persons against whom there is probable cause for suspicion of such criminal complicity. And I think this position can be maintained, in view of the principles already laid down, by a very plain argument.

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."

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 executive 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 Government 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 compendious 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 officer 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, insurrection and all unlawful combinations to resist the General Government.

The duty to suppress the insurrection being obvious 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 laws. Those two acts authorize the President to employ for that purpose the militia, the army and the navy.

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 insurrection in the field of battle. If they seek to prolong the rebellion and gather strength by intercourse with foreign nations, he may choose to guard the coasts and close the ports with a navy, as one of the most efficient means to suppress the insurrection. And if they employ spies and emissaries 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 Supreine 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 peace and safety of the country, and undeniably belongs to the Government, and therefore must be exercised 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 then 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 condemnation. 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 prove 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 be true, as I have assumed, that the President and the judiciary are co-ordinate departments of Government, and the one not subordinate 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 submi implicitly to his judgment and, in

case of disobedience, 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 has sometimes been 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 impossible for the President to be in the actual custody of a prisoner, taken in civil war or arrested on suspicion of be. ing 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 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 establish another political Government upon its ruins. And the President, as the chief civil magistrate of the nation, and the most active department of the Government, is eminently and exclusively political in all his principal functions. As the political chief of the nation, the Constitution charges him with its preservation, protection and defense, and requires him to take care that the laws be faithfully executed. And in that character, and by the aid of the acts of Congress 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 jurisdiction exercised under the writ of habeas corpus 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 entertain an appeal, in any form, from a decision of the President of the United States-and especially in a case purely political.