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OPINION OF THE ATTORNEY

GENERAL.

485

There is but one sentence in the Constitution | Commentaries, book 3, page 131. which mentions the writ of habeas corpus-article 1, section 9, clause 2-which is in these words: "The privilege 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 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 States, 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 English law and the guarantees of English freedom. They knew that the English Government had, more than once, assumed the power to imprison whom 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, section 14, and the act of March 2, 1833, section 7-have, I believe, equivalent powers.

It has been decided by the Supreme Court, and I doubt not correctly-see Bollman and 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 own people and the circumstances of the times-has also decided that the writ of habeas corpus mentioned in the Constitution is the great writ ad subjiciendum.

That writ, in its nature, action and objects, is tersely and accurately described by Sir William Blackstone. I adopt his language, as found in his

"But the great

and efficacious writ, in all manner of illegal confinement, is that of habeas corpus ad subjiciendum, directed to the person detaining another and commanding him to produce the body of the prisoner, with the day and cause of his caption and detention, ad faciendum, subjiciendum et recipiendum, to do, submit to, and receive whatsoever the judge or court awarding such writ shall consider in that behalf. This is a high prerogative writ, and therefore by the common law, issuing out of the Court of King's Bench, not only in term time, but also during the vacation, by a fiat from the Chief Justice or or any other of the judges, and running into all parts of the king's dominions; for the king is at all times entitled to have an account why the liberty of any of his subjects is restrained, wherever that restraint may be inflicted."

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Such is the writ of habeas corpus, of which the Constitution declares that the privilege thereof shall not be suspended, except when, in cases of rebellion or invasion, the public safety may require it. But the Constitution is silent as to who may suspend it when the contingency happens. I am aware that it has been declared by the Supreme Court, that if, at any time, the public safety should require the suspension of the powers vested by this act, (meaning the Judiciary Act of 1789, section 14,) in the courts of the United States, it is for the Legislature to say so. That question depends upon political considerations, on which the Legislature is to decide." Upon this, I remark only, that the Constitution is older than the Judiciary Act, and yet it speaks of the privilege of the writ of habeas corpus as a thing in existence; it is in general terms, and does not speak with particular reference to powers which might or might not be granted by a future act of Congress. Besides, I take it for cer tain that in the common course of legislation, Congress has power, at any time, to repeal the Judiciary Act of 1789, and the act of 1833, (which grants to the courts and to the judges the power to issue the writs,) without waiting for a rebellion or invasion, and a consequent public necessity, to justify, under the Constitution, the suspension of the writ of habeas corpus. The court does not speak of suspending the privilege of the writ, but of suspending the powers vested in the court by the act. The power to issue a writ can hardly be called a privilege, yet the right of an individual to invoke the protection of his Government in that form may well be designated by that name. And I should infer, with a good deal of confidence, that the court meant to speak only of its own powers, and not of the privilege of individuals, but for the fact that the Court ascribes the power to suspend to the Legisla.

ture upon political grounds. It says "that ques- | adjudge his proceedings. The opinion of the court, tion depends upon political considerations, on delivered by the learned Chief Justice Taney, dewhich the Legislature is to decide." Now, I had clares that if the court had that power, “then it supposed that questions did not belong exclusively would become the duty of the court (provided that to the Legislature, because they depend upon poli- it came to the conclusion that the President had detical considerations, inasmuch as the President, in cided incorrectly) to discharge those who were arhis constitutional and official duties, is quite as po- rested or detained by the troops in the service of the litical as is the Congress, and has daily occasion in United States, or the Government which the Presithe common routine of affairs to determine ques- dent was endeavoring to maintain. If (says that tions upon political considerations alone. learned court) the judicial power extends so far, the guarantee contained in the Constitution of the United States (meaning, of course, protection against insurrection) is a guarantee of an archy and not of order.

If by the phrase the suspension of the privilege of the writ of habeas corpus, we must understand a repeal of all power to issue the writ, then I freely admit that none but Congress can do it. But if we are at liberty to understand the phrase to mean, that, in case of a great and dangerous rebellion, like the present, the public safety requires the arrest and confinement of persons implicated in that rebellion, I as freely declare the opinion, that the President has lawful power to suspend the privilege of persons arrested under such circumstances. For he is especially charged by the Constitution with the "public safety," and he is the sole judge of the emergency which requires his prompt action.

This power in the President is no part of his ordinary duty in time of peace; it is temporary and exceptional, and was intended only to meet a pressing emergency, when the judiciary is found to be too weak to insure the public safety-when (in the language of the act of Congress) there are" combinations too powerful to be suppressed by the ordinary course of judicial proceedings, or by the powers vested in the marshals." Then, and not till then, has he the lawful authority to call to his aid the military power of the nation, and with that power perform his great legal and constitutional duty to suppress the insurrection. And shall it be said that when he has fought and captured the insurgent army, and has seized their secret spies and emissaries, he is bound to bring their bodies before any judge who may send him a writ of habeas corpus," to do, submit to and receive whatsoever the said judge shall consider in that behalf?"

I deny that he is under any obligation to obey such a writ, issued under such circumstances. And in making this denial, I do but follow the highest judicial authority of the nation. In the case of Luther vs. Borden, (commonly called the Rhode Island case), reported in 7 Howard, page 1, the Supreme Court discussed several of the most important topics treated of in this opinion, and among them the power of the President alone to decide whether the exigency exists, authorizing him to call out the militia, under the act of 1795. The court affirmed the power of the President in that respect, and denied the power of the court to examine and

Whatever I have said about the suspension of the privilege of the writ of habeas corpus has been said in deference to the opinions of others, and not because I myself thought it necessary to treat of that subject at all in reference to the present posture of our national affairs. For, not doubting the power of the President to capture and hold by force insurgents in open arms against the Government, and to arrest and imprison their suspected accomplices, I never thought of first suspending the writ of habeas corpus, any more than I thought of first suspending the writ of replevin, before seizing arms and munitions destined for the enemy.

The power to do these things is in the hand of the President, placed there by the Constitution and the statute law as a sacred trust, to be used by him in his best discretion in the performance of his great first duty to preserve, protect and defend the Constitution. And for any breach of that trust he is responsible before the high court of impeachment, and before no other human tribunal.

The powers of the President falling within this general class have been several times considered by the judiciary, and have, I believe, been uniformly sustained, without materially varying from the doctrines laid down in this opinion. I content myself with a simple reference to the cases without encumbering this document, already too long, with copious extracts. (The Rhode Island case, 7 Howard, page 1; Fleming vs. Page, 9 Howard, page 615; Cross vs. Harrison, 16 Howard, page 189; the Santissima Trinidad, 7 Wheaton, page 305; Martin vs. Mott, 12 Wheaton, page 29.)

To my mind it is not very important whether we call a particular power exercised by the President a peace power or a war power, for undoubtedly, he is armed with both. He is the chief civil magistrate of the nation, and being such, and because he is such, he is the constitutional Commander in-Chief of the army and navy; and thus, within the limits of the Constitution, he rules in peace and commands in war, and at this moment he is in the full exercise of

OPINION OP CHIEF

JUSTICE TANEY.

487

all the functions belonging to both those characters. The civil administration is still going on in its peaceful course, and yet we are in the midst of war-a war in which the enemy is, for the present, dominant in many States, and has his secret allies and accomplices scattered through many other States which are still loyal and true. A war all the more dangerous, and more needing jealous vigilance and prompt action, because it is an internecine and not an international war.

This, sir, is my opinion, the result of my best reflections, upon the questions propounded by you. Such as it is, it is submitted, with all possible respect, by your obedient servant,

EDWARD BATES, Attorney-General,

OPINION OF THE CHIEF JUSTICE OF THE UNITED STATES CONTROVERTING THE RIGHT OF THE PRESIDENT TO SUSPEND THE PRIVILEGE OF THE HABEAS CORPUS ACT.

Ex parte JOHN MERRYMAN.

Before the Chief Justice of the
Supreme Court of the United
States, at Chambers.

The application in this case for a writ of habeas corpus is made to me under the 14th section of the judiciary act of 1789, which renders effectual for the citizen the constitutional privilege of the writ of habeas corpus. That act gives to the courts of the United States, as well as to each justice of the Supreme Court, and to every district judge, power to grant writs of habeas corpus, for the purpose of an inquiry into the cause of commitment. The petition was presented to me at Washington, under the impression that I would order the prisoner to be brought before me there, but as he was confined in Fort McHenry, at the city of Baltimore, which is in my circuit, I resolved to hear it in the latter city, as obedience to the writ, under such circumstances, would not withdraw General Cadwalader, who had him in charge, from the limits of his military command.

The petition presents the following case: The petitioner resides in Maryland, in Baltimore county. While peaceably in his own house, with his family, it was, at two o'clock, on the morning of the 25th of May, 1861, entered by an armed force, professing to act under military orders. He was then compelled to rise from his bed, taken into custody, and conveyed to Fort McHenry, where he is imprisoned by the commanding officer, without warrant from any lawful authority.

The commander of the fort, General George Cadwalader, by whom he is detained in confinement, in his return to the writ, does not deny any of the

facts alleged in the petition. He states that the prisoner was arrested by order of General Keim, of Pennsylvania, and conducted as a prisoner to Fort McHenry by his order, and placed in his (General Cadwalader's) custody, to be there detained by him as a prisoner.

A copy of the warrant, or order, under which the prisoner was arrested, was demanded by his counsel, and refused. And it is not alleged in the return that any specific act, constituting an offense against the laws of the United States, has been charged against him upon oath; but he appears to have been arrested upon general charges of treason and rebellion, without proof, and without giving the names of the witnesses, or specifying the acts, which, in the judgment of the military officer, constituted these crimes. And having the prisoner thus in custody upon these vague and unsupported accusations, he refuses to obey the writ of habeas corpus, upon the ground that he is duly authorized by the President to suspend it.

The case, then, is simply this: A military officer, residing in Pennsylvania, issues an order to arrest a citizen of Maryland upon vague and indefinite charges, without any proof, so far as appears. Under this order his house is entered in the night; he is seized as a prisoner, and conveyed to Fort Mc Henry, and there kept in close confinement. And when a habeas corpus is served on the commanding officer, requiring him to produce the prisoner before a justice of the Supreme Court, in order that he may examine into the legality of the imprisonment, the answer of the officer is, that he is authorized by the President to suspend the writ of habeas corpus at his discretion; and, in the exercise of that discretion, suspends it in this case, and on that ground refuses obedience to the writ.

As the case comes before me, therefore, I understand that the President not only claims the right to suspend the writ of habeas corpus himself, at his discretion, but to delegate that discretionary power to a military officer, and to leave it to him to determine whether he will or will not obey judicial pro cess that may be served upon him.

No official notice has been given to the courts of justice, or to the public, by proclamation, or otherwise, that the President claimed this power, and had exercised it in the manner stated in the return. And I certainly listened to it with some surprise, for I had supposed it to be one of those points of constitutional law upon which there was no difference of opinion, and that it was admitted on all hands that the privilege of the writ could not be suspended, except by act of Congress.

When the conspiracy of which Aaron Burr was the head, became so formidable, and was so exten

sively ramified, as to justify, in Mr. Jefferson's opinion, the suspension of the writ, he claimed, on his part, no power to suspend it--but communicated his opinion to Congress, with all the proofs in his possession in order that Congress might exercise its discretion upon the subject, and determine whether the public safety required it. And in the debate which took place upon the subject, no one suggested that Mr. Jefferson might exercise the power himself, if, in his opinion, the public safety demanded it.

Having, therefore, regarded the question as too plain and too well settled to be open to dispute, if the commanding officer had stated that upon his own responsibility, and in the exercise of his own discretion he refused obedience to the writ, I should have contented myself with referring to the clause in the Constitution, and to the construction it received from every jurist and statesman of that day, when the case of Burr was before them. But being thus officially notified that the privilege of the writ has been suspended under the orders, and by the authority of the President, and, believing as I do, that the President has exercised a power which he does not possess under the Constitution, a proper respect for the high office he fills requires me to state plainly and fully the grounds of my opinion, in order to show that I have not ventured to question the legality of his act without a careful and deliberate examination of the whole subject.

The clause in the Constitution, which authorizes the suspension of the privilege of the writ of habeas corpus, is in the 9th section of the first article.

This article is devoted to the legislative department of the United States, and has not the slightest reference to the executive department. It begins by providing "that all legislative powers therein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives." And after prescribing the manner in which these two branches of the legislative department shall be chosen, it proceeds to enumerate specifically the legislative powers which it thereby grants, and legislative powers which it expressedly prohibits, and, at the conclusion of this specification, a clause is inserted, giving Congress "the power to make all laws which may be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the Government of the United States or in any department or office thereof."

The power of legislation granted by this latter clause is by its words carefully confined to the specific objects before enumerated. But as this limitation was unavoidably somewhat indefinite it was

deemed necessary to guard more effectually certain great cardinal principles essential to the liberty of the citizen, and to the rights and equality of the States, by denying to Congress, in express terms, any power of legislating over them. It was apprehended, it seems, that such legislation might be attempted under the pretext that it was necessary and proper to carry into execution the powers granted; and it was determined that there should be no room to doubt, where rights of such vital importance were concerned; and accordingly, this clause is immediately followed by an enumeration of certain subjects, to which the powers of legisla tion shall not 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 powersand even in these cases, the power is denied, and its 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 citizen now claimed was intended to have been 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 fur. nish the slightest ground to justify the exercise of the power.

The article begins by declaring that the execu tive 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 prescribe the mode 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 govern ment which were considered as dangerous to the liberty of the subject and conferred (and that in

OPINION OF CHIEF

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 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.

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So, too, his powers in relation to the civil duties and authority necessarily conferred on him are carefully restricted, as well as those belonging to his military character. He cannot appoint the ordinary officers of government, nor make a treaty with a foreign nation or Indian tribe, without the advice or consent of the Senate, and cannot appoint even inferior officers unless he is authorized by an act of Congress to do so. He is not empow ered to arrest any one charged with an offense against the United States, and whom he may, from the evidence before him, believe to be guilty; nor can he authorize any officer, civil or military, to exercise this power, for the fifth article of the amendments to the Constitution expressly provides that no person shall be deprived of life, liberty, or property, without due process of law"-that is, judicial process. And even if the privilege of the writ of habeas corpus was suspended by act of Congress, and a party not subject to the rules and articles of war was afterwards arrested and imprisoned by regular judicial process-he could not be detained in prison or brought to trial before a military tribunal, for the article in the amendments to the Constitution immediately following the one above referred to that is, the sixth article, provides that: "In all criminal prosecutions the accused shall enjoy the right to a speedy and public trial by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law; and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for ob

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taining witnesses in his favor; and to have the assistance of counsel for his defense."

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 to take care that they be faithfully carried into execution, as they are expounded and adjudged by the co-ordinate 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. He 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."

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Indeed, the security against imprisonment by executive authority, provided for in the fifth article of the amendments to the Constitution, which I have before quoted, is nothing more then a copy of a like provision in the English Constitution, 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 imprison

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