TIE VIEWS OF PRUSSIA.

479

BARON SCHLENITZ TO BARON GEROLT.

may meet, giving them the assurance that in every | the proposed treaty which it submitted to as in event the American nation may count upon the most 1854, taken the initiative in carrying out liberal cordial sympathy on the part of our august master principles, and insuring on a wider scale the rights during the important crisis which it is passing of which it treated. It is with great pleasure we through at present.

GORTSCHAKOFF. have received at this time the proposals from North

America, and if the negotiations conducted by you have not had the desired success, because there was

a hesitation in deferring to our wishes for the abo. PRUSSIA.

lition of letters of marque, yet, the generally felt

necessity of seeing the rights of neutrals in time of BERLIN, June 13th, 1861. war, mutually settled on a wide and unalterable The incontestable fact of the state of intestine war basis, has been taken into serious consideration by in which the Union is engaged at this moment, is for the great maritime Powers of Europe. the royal government a subject of deep regret. The The declaration signed at Paris on the 6th of April, relations of profound friendship which bind Prussia 1856, is a proof of it. All the European States, Spain to the Government of the United States have existed alone excepted, have adhered to it. If the United since the establishment of the Union. They have States have, to our regret, in regard to the first never been disturbed or troubled in any manner in proposition concerning the abolition of letters of the course of a century by the vicissitudes of events. marque, refused in their turn to adhere to the Paris By a series of treaties having especially in view the declaration, we do not overlook the kindly and lib. advantages of reciprocal commercial interests, those eral intention which controlled the views of the intimate relations between the two States have been Washington Cabinct. That intention was manifesthappily consolidated. At no time has a collision of ed in the counter proposition of President Pierce, opposing interests taken place between both Pow. according to which the principle of the inviolability ers. The scope which the internal prosperity of the of private property on the sea should be inscribed Union has taken, the growing extent of the States in the code of international law. Unfortunately, held together by the bonds of harmony, and the the President did not succeed in getting that propo. power which North America has acquired abroad, sition adopted. You are perfectly aware of the far from being viewed with jealousy by Prussia, justice we have done him. have ever been greeted with sincere sympathy. In view of the doubts existing in regard to the

Our regret is so much the more lively at seeing treatment of which neutral shipping may be subnow the continuance of so happy a condition be. jected in the course of the present war, I beg you come a question, in consequence of the disturbance to make this important question the object of a free that internal harmony is experiencing, the existence and friendly explanation with the American Secreof which has hitherto been the surest basis of the tary of State. Union.

What we should most desire is that the American It is not the part of the royal government either Government should seize this occasion to proclaim to discuss the causes of that rupture or to pass judg. its accession to the Paris declaration. If that be menton litigious questions which regard exclusively not possible, we would be satisfied for the present the internal situation of the Union. All our efforts that, while the war lasts, they would please to ap. will tend to preserve, even under present circum- ply to neutral shipping generally, the second and stances, our position towards the United States. third propositions of the Paris declaration. The ap. Yet the grave turn which the conflict has taken, plication of the second proposition, providing that and the measures which the Government of the a neutral flag covers enemies' merchandise, unless Union itself has taken in relation to blockade and contraband of war, is already guaranteed to Prus. the treatment of neutral vessels, have a sensible and sian shipping by article 12 of the treaty of Septemserious bearing on our interests, and the royal gov ber 10, 1785, reproduced in our treaty with the ernment believes it to be its duty to give to those United States of May 1, 1828. However, we attach interests the protection which is founded upon pub. a particular importance to the application at this lic law and upon treaties.

time, generally, of that principle to neutral shipping. You are fully informed of the negotiations which we have the less doubt of it since, conformably to bave been carried on for many years between Prus- a dispatch, under date of June 27, 1859, addressed sia and the United States relative to the principles by Mr. Cass, Secretary of State, to the Minister of which should be applied in time of war touching the United States at Paris, and which has been the rights of neutral vessels. With the American communicated to us; the President, without, how. Cabinet will ever rest the honor of having first, in ever, adhering to the Paris declaration, expressly

1861.}

demanded that the principle under which the neu. | OPINION OF THE ATTORNEY GENERAL OX tral flag covers neutral merchandise, unless contra- THE SUSPENSION OF THE WRIT OF band of war, should be applied everywhere and by

HABEAS CORPUS. every one to United States vessels.

ATTORNEY GENERAL'S OFFICE, Concerning the third proposition, in regard to the

WASHINGTON CITY, July 5th, 1861. inviolability of private property on the high seas it To the President : is of urgent necessity for the great Powers that it SIR : You have required my opinion in writing be recognized by America. If doubts still exist as

upon the following questions : to that principle being carried out, the commercial “1. In the present time of a great and dangerous insurenterprises of neutral States will be exposed to in. rection, has the President the discretionary power to cause evitable inconvenience, and we may have cause to

to be arrested and hold in custody persons known to have

criminal intercourse with the insurgents, or persons against fear collisions even of a very serious nature, and

whom there is probable cause for suspicion of such criminal which we would desire might be prevented in time. complicity o

I will experience a real satisfaction in receiving “ 2. In such cases of arrest is the President justified in from you soon the news that the overtures and pro- refusing to obey a writ of habeus corpus issued by a court posals with which I have just charged you have met

or a judge, requiring him or his agent to produce the body

of the prisoner, and show the cause of his caption and dewith a promising reception. SCHLEINITZ.

tention, to be adjudged and disposed of by such court or judge »

To make my answer to these questions at once CASSIUS M. CLAY'S MEMORANDUM.

consistent and plain, I find it convenient to advert to The “memorandum” referred to on page 111, ad- the great principle of government, as recognized dressed by Mr. Clay to a Nashville editor-reciting and acted upon in most, if not all, the countries in the result of an interview held with the President, Europe, and to mark the difference between that at the instigation of said editor-was as follows:

principle, and the great principle which lies at the

bottom of our National Government. “ WASHINGTON, April 20th, 1861.

Most European writers upon government assume, “ The undersigned, on all the responsibilities of a Kentuck- expressly or by implication, that every national gove jan, a patriot, and a man, desiring the perpetuation of the Union and the liberties of the people—opposed always to ag.

ernment is, and must be, the full expression and gressive war, believing that civilization cannot be advanced representation of the nation which it governs, armed by arms, but that only pre-existing ideas can be so fixed-in with all its powers and able to assert all its rights. savor of peaceful emancipation by the will of the govereign. In England, the form of whose government more ties, and against servile war and insurrections—isserts upon nearly approximates our own, and where the rights, his own responsibility the policy of the Administration to be

interests and powers of the people are more respect. peace, if consistent with honor.

ed and cared for than in most of the nations of the “1. He reasserts the avowals of President Lincoln in his inaugural address and late proclamation, to make war upon European Continent, it has grown into an axion no State, much less upon Virginia or the Border States, whose that “the Parliament is oinnipotent," that is, that it Union men he would conciliate and save as friends. For this reason he retires from Harper's Ferry as he did from Sumter, lation or by judgment. For all the ends of govern

can do anything that is possible to be done by legis. acting clearly on the defensive, that he might stand before mankind guiltless of this great fraternal suicide. For the

ment the Parliament is the nation. Moreover, in same reason he refuses to avenge the blood of American citi- Europe generally, the sovereignty is vested visibly zens shed in Baltimore in the peaceful passage to the seat of in some designated man or set of men, so that the the common Government.

subject people can see their sovereign as well as “2. But the President will not, when pressed to the wall, fail to assert to his fall ability the power and safety of the feel the workings of his power. But in this country National Government, unless the people, whose servant he is, it has been carefully provided otherwise. In the shall otherwisc decree.

formation of our National Government our fathers “3. Any attack on the National forces or property in the were surrounded with peculiar difficulties, arising District of Columbia, will be regarded as a declaration of

out of their novel, I may say unexampled, condiwar and a fatal blow at all hope of peace. "4. Ho will not deceive Maryland or Virginia, or any State,

tion. In resolving to break the ties which had by false professions ; he will continue to strengthen his po

bound them to the British Empire, their complaints sition in this place of National exclusive jurisdiction at all were levelled chiefly at the King, not the Parliahazards, and by all the defensive means in his power, and

ment nor the people. They seem to have been actthis ne feels abundantly able to do.

uated by a special dread of the unity of power, and “5. Virginia and Maryland may keep the peace and give time for the passions of men to cool hy avoiding the iura. hence, in framing the Constitution, they preferred to Blou of the District or obstructing our movements. Virgi- , take the risk of leaving some good undone, for lack mia must confine herself to her own soil.

of power in the agent, rather than arm any governo “ (Signed)

C. M. CLAY." ment officer with such great powers for evil as are

OPINION

OF

TIE

ATTORNEY GENERAL.

481

implied in the dictatorial charge to "see that no President. And thus we shall have a theory of con. damage comes to the Commonwealth."

stitutional government flatly contradicting itself. Hence, keeping the sovereignty always out of Departments co-ordinate and co-equal, and yet resight, they adopted the plan of "checks and bal- ciprocally subordinate to each other! That cannot ances,” forming separate departments of govern. be. The several departments, though far from sov. ment, and giving each department separate and ereign, are free and independent, in the exercise of limited powers. These departments are co-ordinate the limited powers granted to them respectively by and co-equal--that is, neither being sovereign, each the Constitution. Our government indeed, as a is independent in its sphere, and not subordinate to whole, is not vested with the sovereignty, and does the others, either of them or both of them together. not possess all the powers of the nation. It has We have three of these co-ordinate departments. no powers but such as are granted by the Constitu. Now, if we allow one of the three to determine the tion; and many powers are expressly withheld. extent of its own powers, and also the extent of the The nation certainly s co-equal with all other napowers of the other two, that one can control the tions, and has equal powers, but it has not chosen whole government, and has, in fact, achieved the to delegate all its powers to this government, in any sovereignty.

or all of its departments. We ought not to say that our system is perfect, The government, as a whole, is limited, and limfor its defects (perhaps inevitable in all human ited in all its departments. It is the especial functhings) are obvious. Our fathers, having divided | tion of the judiciary to hear and determine cases, the government into co-ordinate departments, did not to establish principles," nor“settle questions," not even try (and if they had tried, would probably so as to conclude any person but the parties and have failed) to create an arbiter among them to privies to the cases adjudged. Its powers are speadjudge their conflicts and keep them within their cially granted and defined by the Constitution, artirespective bounds. They were left, by design, I cle 3, section 2: suppose, each independent and free, to act out its “ The judicial power shall extend to all cases in own granted powers, without any ordained legal law and equity arising under this Constitution, the superior possessing the power to revise and reverse laws of the United States, and treaties made, and its action. And this with the hope that the three which shall be made, under their authority; to all departments, mutually co-equal and independent, cases affecting ambassadors, other ministers and would keep each other within their proper spheres consuls; to all cases of admiralty and maritime by their mutual antagonism-that is, by the system jurisdiction ; to controversies to which the United of checks and balances, to which our fathers were States shall be a party ; to controversies between driven at the beginning, by their fear of the unity two or more States; between States and citizens of of power.

other States ; between citizens of different States; In this view of the subject it is quite possible between citizens of the same State claiming lands for the same identical question (not case) to come under grants of different States, and between a up legitimately before each one of the three depart- State, or the citizens thereof, and foreign States, ments, and be determined in three different ways, citizens or subjects.” And that is the sum of its and each decision stand irrevocable, binding upon powers, ample and efficient for all the purposes of the parties to each case; and that, for tho simple distributive justice among individual parties, but reason that the departments are co-ordinate, and powerless to impose rules of action and of judgment there is no ordained legal superior, with power to upon the other departments. Indeed, it is not itself revise and reverse their decisions.

bound by its own decisions, for it can and often does To say that the departments of our government overrule and disregard them, as, in common hon. are co-ordinate, is to say that the judgment of one esty, it ought to do, whenever it finds, by its after of them is not binding upon the other two, as to the and better lights, that its former judgments wero arguments and principles involved in the judgment. | wrong. It binds only the parties to the case decided. But Of all the departments of the government, the if, admitting that the departments of government President is the most active, and the most constant are co-ordinate, it be still contended that the prin- in action. He is called “the Executive," and so, in ciples adopted by one department, in deciding a fact, he is, and much more also, for the Constitucase properly before it, are binding upon another tion has imposed upon him many important duties, department, that obligation must of necessity be and granted to him great powers which are in their reciprocal--that is, if the President be bound by the nature not executive-such as the veto power; the principles laid down by the judiciary, so also is the power to send and receive ambassadors; the power judiciary bound by the principles laid down by the ) to make treaties, and the power to appoint officers. This last is not more an executive power when used in the performance of his legal duties is not only in. by the President than it is when exercised by either herent in his office, but has been frequently recog. House of Congress, by the courts of justice, or by nized and aided by Congress. One striking examthe people at large.

ple of this is the act of Congress of March 3d, 1807, The President a department of the Govern- (2 Stat., 445,) which empowered the President, ment; and, although the only department which without the intervention of any court, to use the consists of a single man, he is charged with a greater marshal, and, if he be insufficient, to use the army, range and variety of powers and duties than any summarily to expel intruders and squatters upon other department. He is a civil magistrate, not a the public lands. And that power has been fremilitary chief; and in this regard we see a striking quently exercised, without, as far as I know, a ques. proof of the generality of the sentiment prevailing tion of its legality. To cail, as is sometimes done, in this country at the time of the formation of our the judiciary the civil power, and the President the Government, to the effect that the military ought to military power, seems to me at once a mistake of be held in strict subordination to the civil power. fact and an abuse of language. For the Constitution, while it grants to Congress the While the judiciary and the President, as departunrestricted power to declare war, to raise and sup- ments of the General Government, are co-ordinate, port armies, and to provide and maintain a navy, at equal in dignity and power, and equally trusted by the same time guards carefully against the abuse of the law, in their respective spheres, there is, never that power, by withholding from Congress and from theless, a marked diversity in the character of their the army itself the authority to appoint the chief functions and their modes of action. The judiciary commander of a force so potent for good or for evil is, for the most part, passive. It rarely, if ever, to the State. The Constitution provides that “the takes the initiative; it seldom or never begins an President shall be Commander-in-Chief of the army operation. Its great function is judgment, and, in and navy of the United States, and of the militia of the exercise of that function, it is confined almost the several States when called into the actual service exclusively to cases not selected by itself, but made of the United States.” And why is this? Surely and submitted by others. The President, on the not because the President is supposed to be, or contrary, by the very nature of his office, is active; commonly is, in fact, a military man-a man skilled he must often take the initiative ; he must begin in the art of war and qualified to marshal a host in operations. His great function is execution, for he the field of battle. No, it is for quite a different rea- is required by the Constitution (and he is the only son; it is that whatever skillful soldier may lead our department that is so required) to “take care that armies to victory against a foreign foe, or may quell the laws (all the laws) be faithfully executed," and a domestic insurrection; however high he may raise in the exercise of that function, his duties are coex. his professional renown, and whatever martial glory tensive with the laws of the land. he may win, still he is subject to the orders of the Often, he comes to the aid of the judiciary, in the civil magistrate, and he and his army are always execution of its judgments; and this is only a part, " subordinate to the civil power."

and a small part, of his constitutional duty, to take And hence it follows, that whenever the Presi- care that the laws be faithfully executed. I say it dent, (the civil magistrate,) in the discharge of his is a small part of his duty, because for every inconstitutional duty, to “take care that the laws be stance in which the President executes the judge faithfully executed," has occasion to use the army to ment of a court, there are a hundred instances in aid him in the performance of that duty, he does not which he executes the law, without the intervention thereby lose his civil character and become a sol- of the judiciary, and without referring at all to its dier, subject to military law and liable to be tried functions. by a court-martial, any more than does a civil court I have premised this much in order to show the lose its legal and pacific nature and become mili- separate and independent character of the several tary and belligerent by calling out the power of the departments of our Government, and to indicate the country to enforce its decrees. The civil magis inevitable differences in their modes of action, and trates, whether judicial or executive, must of neces. the characteristic diversity of the subjects upon sity employ physical power to aid them in enforcing which they operate; and all this as a foundation for the laws, whenever they have to deal with disobe- the answers which I will now proceed to give to the dient and refractory subjects; and their legal power particular questions propounded to me. and right to do so is unquestionable. The right of As to the first question, I am clearly of opinion the courts to call out the whole power of the coun- that, in a time like the present, when the very (. try to enforce their judgments, is as old as the com- istence of the nation is assailed, by a great and dan. mon law; and the right of the President to use force gerous insurrection, the President has the lawful,

discretionary power to arrest and hold in custody | The duty to suppress the insurrection being obvious persons known to bave criminal intercourse with and imperative, the two acts of Congress, of 1795 the insurgents, or persons against whom there is and 1807, come to his aid, and furnish the physical probable cause for suspicion of such criminal com- force which he needs, to suppress the insurrection plicity. And I think this position can be maintained, and execute the laws. Those two acts authorize in view of the principles already laid down, by a the President to employ for that purpose the militia, very plain argument.

the army and the navy. The Constitation requires the President, before he The argument may be briefly stated thus : It is enters upon the execution of his office, to take an the President's bounden duty to put down the insuroath that he “ will faithfully execute the office of rection, as (in the language of the act of 1795) the President of the United States, and will, to the best "combinations are too powerful to be suppressed of his ability, preserve, protect and defend the Con- by the ordinary course of judicial proceedings, or stitution of the United States."

by the powers vested in the marshals." And this The duties of the office comprehend all the exe-duty is imposed upon the President for the very cutive power of the nation, which is expressly vested reason that the courts and the marshals are too weak in the President by the Constitution, article 2, sec- to perform it. The manner in which he shall per. tion 1, and also, all the powers which are specially form that duty is not prescribed by any law, but the delegated to the President, and yet are not, in their means of performing it are given, in the plain lannature, executive powers. For example, the veto guage of the statutes, and they are all means of power; the treaty making power; the appointing force — the militia, the army and the navy. The power; the pardoning power. These belong to end, the suppression of the insurrection, is required that class which, in England, are called prerogative of him ; the means and instruments to suppress it powers, inherent in the crown. And yet the framers are lawfully in his hands; but the manner in which of our Constitution thought proper to preserve them, he shall use them is not prescribed, and could not and to vest them in the President, as necessary to be prescribed, without a foreknowledge of all the the good government of the country. The exe- future changes and contingencies of the insurrection. cutive powers are granted generally, and without He is, therefore, necessarily thrown upon his discrespecification; the powers not executive are granted tion, as to the manner in which he will use his means specially, and for purposes obvious in the context to meet the varying exigencies as they arise. If the of the Constitution. And all these are embraced insurgents assail the nation with an army, he may within the duties of the President, and are clearly find it best to meet them with an army, and suppress within that clause of his oath which requires him to the insurrection in the field of battle. If they seek “faithfully execute the office of President."

to prolong the rebellion and gather strength by in. The last clause of the oath is peculiar to the Presi- tercourse with foreign nations, he may choose to dent. All the other officers of Government are re- guard the coasts and close the ports with a navy, as quired to swear only“ to support this Constitution,” | one of the most efficient means to suppress the inwhile the President must swear“ to preserve, pro- surrection. And if they employ spies and emistect and defend it,” which implies the power to, saries to gather information, to forward secret supperform what he is required in so solemn a man- plies, and to excite new insurrections in aid of the ner to undertake. And then follows the broad and original rebellion, he may find it both prudent and compendious injunction to “ take care that the laws humane to arrest and imprison them. And this may be faithfully executed.” And this injunction, em- be done, either for the purpose of bringing them to bracing as it does all the laws-Constitution, trea- trial and condign punishment for their crimes, or ties, statutes-is addressed to the President alone, they may be held in custody for the milder end of and not to any other department or officer of the rendering them powerless for mischief, until the exGovernment. And this constitutes him, in a pecu- igency is past. liar manner, and above all other officers, the guar- In such a state of things the President must, of dian of the Constitution—its preserver, protector necessity, be the sole judge, both of the exigency and defender.

which requires him to act and of the manner in which It is the plain duty of the President (and his pecu- it is most prudent for him to employ the powers en. liar duty, above and beyond all other departments trusted to him, to enable him to discharge his conof the Government) to preserve the Constitution stitutional and legal duty-that is, to suppress the and execute the laws all over the nation; and it is insurrection and execute the laws. And this displainly impossible for him to perform this duty without cretionary power of the President is fully admitted putting down rebellion, insurrection and all unlaw. by the Supreine Court, in the case of Martin vs. Mott. ful combinations to resist the General Government. (12 Wheaton's Reports, page 19; 7 Curtis 10.)