Page images

ture upon political grounds. It says "that question depends upon political considerations, on which the Legislature is to decide." Now, I had supposed that questions did not belong exclusively to the Legislature, because they depend upon political considerations, inasmuch as the President, in his constitutional and official duties, is quite as political as is the Congress, and has daily occasion in the common routine of affairs to determine questions upon political considerations alone.

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

adjudge his proceedings. The opinion of the court, delivered by the learned Chief Justice Taney, declares that if the court had that power, "then it would become the duty of the court (provided that it came to the conclusion that the President had decided incorrectly) to discharge those who were arrested or detained by the troops in the service of the United States, or the Government which the Presi dent was endeavoring to maintain. If (says that 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 anarchy and not of order.

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



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.

all the functions belonging to both those characters. | facts alleged in the petition. He states that the 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.



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

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 opin- | deemed necessary to guard more effectually certain ion, 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.

[ocr errors]

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 legisla tive 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."

[ocr errors]

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

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 appre hended, it seems, that such legislation might be at tempted 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 furnish 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 belonging 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



clear and specific terms) those powers only which | taining witnesses in his favor; and to have the aswere deemed essential to secure the successful sistance of counsel for his defense." 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 al though 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.

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 empowered 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 Con_gress, 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

And the only power, therefore, which the Presi dent possesses, where the "life, liberty, or pro. perty" 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 sup posing 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."

[ocr errors]

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..

ment 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 a government intended to guard still more efficiently 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.

to the king for their political opinions, or who had incurred his resentment in any other way.

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 perform their duties promptly, in the manner prescribed in the statute.

A passage in Blackstone's Commentaries, showing the ancient state of the law upon this subject, and the abuses which were practiced through the power and influence of the crown, and a short extract from Hallam's Constitutional History, stating the circumstances which gave rise to the passage of this statute, explain briefly, but fully, all that is material to this subject.

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.

"But the glory of the English law consists in clearly de

fore, 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 of 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 could not upon an 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 parlia mentary inquiry, and produced the Petition of Right-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. Selden aud others were committed 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 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 the good behavior, which

The right of the subject to the benefit of the writ of habeas corpus, it must be recollected, was one of the great points in controversy during the long struggle in England between arbitrary government and free institutions, and must therefore have strong-fining the times, the causes, and the extent, when, wherely attracted the attention of statesmen engaged in framing a new and, as they supposed, a freer government than the one which they had thrown off by the Revolution. For from the earliest history of the common law, if a person was imprisoned-no matter by what authority-he had a right to the writ of habeas corpus to bring his case before the King's Bench; and if no specific offense was charged against him in the warrant of commitment he was entitled to be forthwith discharged; and if an offense was charged which was bailable in its character, the court was bound to set him at liberty on bail. And the most exciting contests between the crown and the people of England from the time of Magna Charta were in relation to the privilege of this writ, and they continued until the passage of the statute of 31st Charles II, commonly known as the great habeas corpus act. This statute put an end to the struggle, and finally and firmly secured the liberty of the subject from the usurpation and oppression of the executive branch of the government. It nevertheless conferred no new right upon the subject, but only secured a right already existing. For, although the right could not justly be denied, there was often no effectual remedy against its violation. Until the stat ute of the 13th of William III, the judges held their offices at the pleasure of the king, and the influence which he exercised over timid, time-serving and partisan judges often induced 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

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 afterwards grant a habeas corpus, being already made 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 resentment was not cooled at the distance of four and twenty years."

It is worthy of remark that the offenses charged against the prisoner in this case, and relied on as a justification for his arrest and imprisonment, in their nature and character, and the loose and vague

« PreviousContinue »