the high office he fills" requires its examination.

that the authority to suspend the writ is not in Congress alone. As before seen, the sole clause applicable to the subject is the 2d, in the 9th 1. There are various securities given to the section of the 1st article. If that does not give citizen in his person and property by the Conit exclusively to Congress or prohibit it to the stitution, inviolable in time of peace, that are Executive, then whether it is in the latter or suspended in time of war. The public safety not is to be ascertained irrespective of that involves the safety of each citizen. His perclause. 1. The first clause of the section re- sonal rights and rights of property are all destricts the power of Congress in words in the pendent upon it. Whatever these are, must, case mentioned in it. The third, fifth, and for the time, be superseded, and yield to whatsixth, referring to matters wholly of a legisla- ever may become necessary in the judgment of tive character, also apply to Congress alone. the legal chief of the war power, when war is The seventh and eighth, as stated above, clear- being waged, to secure such public safety. His ly embrace the Executive, and that depart- lands may be occupied, converted into camp ment alone. This disposes of all the clauses of ground, his timber destroyed, his personal propthe section but the second, the disputed one. erty taken for the use of the army, his house Was that designed to coufer the power in converted into barracks, or pulled down, if obquestion only upon Congress? If it was, why structing an attack on the enemy, or likely to was not Congress named? That was done in afford him accommodations. Some of these the first, the immediately preceding clause, and things are now being done, and no one, judge not in this. Why the omission? Was it be- or otherwise, has ventured to question their lecause the power which it referred to was in its gality. If done in peace they would be mere nature wholly legislative, as are the powers acts of lawlessness, and, if threatened, they mentioned in the three immediately succeeding might be restrained by a writ of injunction. sections? To say this is to beg the very ques- What, however, would be said of a court or tion in dispute. If in certain cases the power judge who would issue such a writ at this time? may become one of an executive character, then All would pronounce it to be too plain and too one of two things results: First, either that a well-settled an abuse of the civil power to rerestraint upon the exercise of the power was quire refutation, and would at the same time made in general language, so as to embrace the justly denounce the President if he submitted Executive as well as Congress; or, second, if to it. The second amended article of the Conthe clause was intended to include Congress stitution secures the right to "the people to alone, was not to subject the power as an Ex- keep and bear arins." The fourth secures them ecutive one to the restriction at all. It is ad-"in their persons, houses, papers, and effects mitted that Congress are subject to the restric- against unreasonable searches and seizures," tion. It is also conceded that the Executive and directs that "no warrants shall issue but is equally subject, whether the clause includes upon probable cause, supported by oath or af that department or not, as the power can never firmation, and particularly describing the place be an executive one, except in the cases mention- to be searched and the persons or things to be ed in the clause; that is to say, when, in cer- seized." These securities were properly thought tain cases, in the judgment of the Executive- to be so vital to the safety of the people that not of a court, much less of a single judge-they were made the subjects of express guar"the public safety" requires its exercise. With antee. With these securities no department of these remarks on the clause we will now inquire the Government in time of peace can interfere. if the power, in the existing exigencies of the But are they not suspended in time of war? If, country, is not an Executive one. in the case of a foreign or a domestic war, as a A state of quasi war exists. The President, rebellion, the Executive believes that arms are under the authority of Congress, the war pow- secreted for the use of the enemy, or are in a er, is in the field to put down the rebellion, place of private deposit, where they may fall aimed, avowedly, at the very existence of the into his hands, can he not order them to be Government. States and their people are in seized without an affidavit describing the place arms, with the declared design to wage the war or the arms to be seized? He also believes until that object, the destruction of the Govern- that there are persons and papers hazardous to ment, is accomplished. In this state of things the public safety, because about to embark or what are the powers and the duty of the Pres-be used in the enemy's service, can he not orident? His sworn obligation is to suppress the der them to be searched for and seized without rebellion, in order "that the laws be faithfully such formality? Who has ever doubted it? executed." In the use of the force placed by Upon principle the suspension of these guaranCongress under his command as the constitu- tees in time of war is thought to be too obvious tional commander-in-chief, has he not all pow-to need argument. War could not at times be ers directly or indirectly belonging to a state of war, and necessary to accomplish its end? This would seem to be, to use the language of the Chief-Justice, too plain and too well settled to be open to dispute;" but as it is practically disputed by that officer, "a proper respect for

successfully carried on if these guarantees were in operation. The course of the commanderin-chief might be arrested at every foot of his progress. He must try to lease camp ground for his men; to buy of willing parties timbers and provisions for their support; to omit seiz

safety may require it." The writ, too, is given but to secure a personal right, whilst the other guarantees embrace not only that right, but nearly all others of person and property.

But the doctrine acted upon by the President does not rest alone on general reasoning. It has been fully recognized in a case before the Supreme Court of the United States, in which it was directly presented, and in the very clearest terms maintained by the present Chief Justice himself, who pronounced the opinion. The case referred to is that of Luther and Borden, in 7 Howard, 1. In 1842 a controversy arose in Rhode Island between the existing charter Government and one alleged by its supporters to have been legally substituted in its place. This last, through its professed Governor, Thomas W. Dorr, prepared to support itself by force of arins, and many citizens "assembled in arms for the purpose." The charter Government thereupon passed an act declaring the State under martial law, and at the same time proceeded to call out the militia to repel the threatened attack, and to subdue those who were engaged in it. Under this authority the defendants "broke and entered" the house of the plaintiff "in order to arrest him," and for this alleged trespass the suit was instituted. The defendants justified. The very question, amongst others that were presented, was the one under consideration: Has a State in such case a right to substitute martial for the civil law, and in the exercise of such right can its officers disregard the latter? The Court held the affirmative of both. The reasons for such a ruling are stated so fully and clearly by the Chief-Justice that they are here given:

ures essential to his success, and if he fails to pend the other guarantees, but does expressly lease, to buy, or to seize, his men may have no authorize them, and in terms which make it encampment and no provisions, the army no their duty, to suspend that of the writ, when, timber, and spies and secret enemies and arms"in case of rebellion or invasion, the public and treasonable papers giving information to the enemy fatal to his plans be practically beyond his reach. The absurdity of these results demonstrates that in time of war these civil guarantees have no place. They are all suspended upon the great overruling principle of the public safety. The power to wage war, to repel invasion, or suppress rebellion, existing in the Constitution, whilst the war continues, operates of itself on that great principle to suspend the ordinary securities for person and property-securities in their nature inconsistent with, because possibly fatal to, a state of war. If these express guarantees of personal liberty and of private property, thought to be so essential to freedom as to be made the subjects of amendments to the Constitution, are to yield to the public necessity which war produces, on what even plausible ground can it be maintained that the writ in question-not even secured by the Constitution, for Congress, as has been seen, may not authorize any officer to issue it, and no court or judge of the United States could issue it without such authority-is not also liable to like suspension? May it not be used to end anger or defeat the success of the war? May it not be used to further, in case of rebellion, the triumph of the rebellion? In Maryland, for instance, where it is believed disaffection to the Government to a certain extent prevails, and sympathy for the rebels is entertained, may it not be exercised so as seriously to disconcert the successful progress of our army? The writ may be issued by any State authority authorized by State law. Every justice of the peace of a State, as well as every judge of a court, may have the power, and if | Congress only can suspend the writ in case of rebellion, and be not in session, as was the case in this instance, and perhaps not to be convened for months, no spy, no citizen, though treason-ernment, were justified in breaking and enterably aiding the rebels, or about to join them in ing the plaintiff's house. In relation to the act the field, and no one of the rebels, chief or sub- of the Legislature declaring martial law, it is altern, could be securely taken and held. The not necessary, in the case before us, to inquire writ might meet the officer at every step of his to what extent, nor under what circumstances, march. It might force him to give up his pris- that power may be exercised by a State. Unoner, or delay his march, or leave his command, questionably a military government, establishand subject himself to the jurisdiction of the ed as a permanent government of the State, justice by insisting before him on the legality would not be a republican government, and it of the capture. This, too, might occur in a would be the duty of Congress to overthrow disaffected district, and then how idle the cap- it. But the law of Rhode Island evidently ture! These consequences, which in some cases contemplated no such government. It was inwould be certain to happen, might be more fatal tended merely for the crisis, and to meet the to the success of war and more advantageous to peril in which the existing Government was the rebellion than the operation of the guaran-placed by the armed resistance to its authority. tees before spoken of; and yet, whilst it has It was so understood and construed by the never been denied that these last are suspended State authorities. And unquestionably, a State by and during the war, that of the writ in ques- may use its military power to put down an armtion is supposed to be as operative as in time of ed insurrection too strong to be controlled by the peace! And what makes the doctrine yet civil authority. The power is essential to the stranger is, that the Constitution does not con-existence of every Government, essential to the fer on Congress the power in any case to sus-preservation of order and free institutions, and

66

"The remaining question," he said, is whether the defendants, acting under military orders, issued under the authority of the Gov

is as necessary to the States of this Union as to | distinguish this case from the one before us. any other Government. The State itself must determine what degree of force the crisis demands. And if the government of Rhode Island deemed the armed opposition so formidable, and so ramified throughout the State, as to require the use of its military force and the declaration of martial law, we see no ground on which this court can question its authority. It was a state of war; and the established Government resorted to the rights and usages of war to maintain itself, and to overcome the unlawful opposition. And in that state of things the officers engaged in its military service might lawfully arrest any one who, from the information before them, they had reasonable grounds to believe was engaged in the insurrection, and might order a house to be forcibly entered and searched when there were reasonable grounds for supposing he might be there concealed. Without the power to do this martial law and the military array of the Government would be mere parade, and rather encourage an attack than repel it."

An effort was there made to destroy the gov ernment of Rhode Island by means of an armed rebellion. It was deemed by the State to be "so formidable and so ramified" "as to require the use of its military force and the declaration of military law." The Court said: "We see no ground upon which this Court can question its authority to do both." In that case the Chief-Justice said: "Unquestionably a State may use its military power to put down an armed insurrection too strong to be controlled by the civil authority. The power is essential to every government, essential to the preservation of order and free institutions, and is as necessary to the States of this Union as to any other Government." Rhode Island was then in "a state of war, and the established government resorted to the rights and usages" of a state "of war to maintain itself and overcome the unlawful opposition." "In that state of things," said the Court, "the officers engaged in its military service might lawfully arrest any one who, from the information before them, they had reasonable grounds to believe was engaged in the insurrection."

These principles were laid down in the broadest terms, and seem to have been in the view of the Court, as indeed they are almost selfevident propositions. No exception to their operation in such a case as was before them was suggested or even hinted. The civil laws of every description were held to be suspended by the laws of war. The arrests are to be

The scoring of the passages is not in the original, but is made to show how clearly the principles they contain support what the President has done. In the same opinion, speaking of the power of the President alone to decide whether the exigency exists authorizing him to call out the militia under the first section of the act of 28th February, 1795, and maintaining it, and denying to the court the right to revise it, it is said: "If it could, (that is, if the Court could re-made under the authority of the latter to subvise,) then it would become the duty of the Court (provided 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 President was endeavoring to maintain. If the judicial power extends so far, the guarantee contained in the Constitution of the United States (that is, of protecting them against insurrection) is a guarantee of anarchy and not of order."

Neither in this passage nor in the first quoted, nor in any other part of the opinion, is it intimated that this right of war, this dispensation of the ordinary civil process the result of such right, however, for a time suspending all other rights-is yet subject to the particular right of habeas corpus-one which, of all others, might be used most injuriously to the public safety, the object of war, than any other. So far from such an intimation, in another part of the opinion, referring to such a crisis as the rebellion which now so unhappily prevails, the Court says: "THE ORDINARY COURSE OF JUSTICE WOULD BE UTTERLY UNFIT FOR THE CRISIS. As a part of that ordinary process, it must be admitted, is the writ of habeas corpus, that as well as every other yields, because, in the language of the Court, unfit for the crisis."

It is submitted that sophistry itself cannot

serve the object of the war, and not, as the Chief Justice now holds, in aid of the judicial authority and subject to its control. The offcer is to act on the “information before" him, and to act at once, and with no responsibility but to his military superior. To subject him in the discharge of this duty to the control of the judicial authority would be, in a material degree, to place the conduct of the war in the hands of that authority. The constitutional commander-in-chief, the President, would be not only subordinate to the Supreme Court of the United States and every one of its judges, but to every civil functionary, whether of the State or of the United States, in whom was vested the power to issue the writ of habeas corpus. If this was so, then the Court and all having that power, abandoning their other duties, should constitute a part of the army and accompany it in its campaigns. This would be necessary to avoid delay, so fatal at times to military suc cess. For, if not done, and the control of the writ actually exists, then each prisoner arrested, whether in battle or not, must be taken at once to the "judicial authority," and disposed of as that authority shall determine. It is evident that no such idea was entertained by the Court in the case in Howard. What was done by the defendants there as officers under the military authority of the State, was not submitted at all to any civil jurisdiction. It was defended on

the ground of the military right alone, and the defence sustained by the Court on that ground alone, and as justified by the rights and usages

of war.

lion and the restoration of the unmolested course of the laws of the United States-to deny obedience to the writ in the cases supposed.

That the power he has exercised, and will continue to exercise, may be abused, is not more true of this than of any other power. That was urged as an objection against the power in the case in Howard, and met in the patriotic spirit which illustrates the whole of the Court's opinion. The following is their language in reference to the objection:

It is no answer to the application of this case to the one before us, to say that in that instance martial law was declared by the legislative authority of Rhode Island and not by its Executive. The reason for this was that such declaration was authorized by the constitution of the State. The power was in the legislative department, because not only the power to declare war, but that of conducting it, was also in that "It is said that this power in the President department. The legislative department, in the is dangerous to liberty, and may be abused. exercise of its mere authority to declare war, is All power may be abused if placed in unwornot authorized to declare martial law. The thy hands. But it would be difficult, we think, last authority arises after, and because the first to point out any other hands in which this is exercised. From its very nature it can only power would be more safe, and at the same be exercised by the power in which is vested time equally effectual. When citizens of the the power to conduct the war. The necessity same State are in arms against each other, and which is to make it advisable depends on place the constituted authorities unable to execute and time, and the present exigencies of the the laws, the interposition of the United States contest. A whole State is not to be subjected must be prompt, or it is of little value. The to it when a part only is threatened by the en- ordinary course of proceedings in courts of jusemy, or is in rebellion. Martial law is a means tice would be utterly unfit for the crisis. And which is afforded for conducting the war, and the elevated office of the President, chosen as is of course to be exercised by the department he is by the people of the United States, and having charge of its conduct. Under the Con- the high responsibility he could not fail to feel stitution of the United States it is clear that when acting in a case of so much moment, although the power to declare war is vested appear to furnish as strong safeguards against solely in Congress, the conduct of the war is a wilful abuse of power as human prudence and solely with the President. Over this last Con- foresight could well provide. At all events, it is gress has no other control than such as a control conferred upon him by the Constitution and laws over the supplies affords. If the authority to of the United States, and therefore must be reinstitute martial law in case of war or rebellion spected and enforced in its judicial tribunals." in a State is more appropriate to the depart- The error of a different doctrine from that ment having the management of the war, a for- upon which the President is acting is thought tiori is it more so where the United States are to be obvious, not only for the reasons given at war or engaged in suppressing a rebellion? by the Chief Justice in the case cited, but for To declare martial law in either of such cases some others which will now be stated. The over the whole of the United States would be power which the President has exercised and useless, and to the extent that it would be use- intends to maintain, is vested in him as comless would be tyrannical. Its justification, its mander-in-chief. It is strictly and exclusively legality, depends on a crisis for which, to re- a military power. The means placed at his peat the words of the Chief-Justice, "the ordi- disposal by Congress for its execution are altonary proceedings in courts of justice would be gether military. The militia and the army and utterly unfit." That crisis must be accidental navy are the only means that are furnished and local. It cannot always and everywhere him, and the end for which they are furnished exist during the contest. The power conse- is to suppress a rebellion for which the ordiquently to provide for it must be in the depart-nary course of proceedings in courts of justice ment having the conduct of the war, and in a condition to judge understandingly of the exigency and to apply the remedy.

That the principles thus decided authorized and made it the duty of the President to deny the writ in such cases as he or his legally delegated officers for that purpose who may be at the place of the emergency should think the public safety required, is thought to be too plain, when fully considered, to be seriously questioned. The public safety, to preserve which is now the President's duty, he will doubtless continue to promote. He certainly believes, as well he may, that it will very materially tend, and has tended, to further the end of that duty-the suppression of the rebel

would be "utterly unfit." Resort to the civil law or to its ministers is nowhere directed or suggested. What is to be done is to be done by force of arms, which implies the absence and inadequacy of every other resort. He has to fight the rebels and capture or subdue them to allegiance. These captures are all arrests, and may be made before or after battle, or in battle. The time and place, when and where made, are immaterial to their legality or effect. In each the captured is a prisoner of war and so to be held. Are such prisoners entitled to the writ of habeas corpus? If so, and the leaders and chiefs who are marshalling their traitorous hosts to destroy the Government, if seized could not be held, if any civil officer,

clothed with the power to issue the writ, should issue it, and being obeyed, should decide (and such instances would no doubt occur) that the enterprise was not only not treasonable but loyal, constitutional, and praiseworthy. Discharged, they return to their troops, and are again leading them in their treacherous career. Is this the way in which the rebellion is to be suppressed? Is this the end of the power and of the means vested in the President to suppress it? If it is, then, in the words of the ChiefJustice, in the case quoted, "the military array of the Government would be mere parade, and rather encourage attack than repel it." The consequences certain almost to follow from such a doctrine are thought to be so striking and so fatal to a faithful execution of the laws, as to suffice without more to demonstrate its unsoundness.

the war-as has been shown, would be comi paratively impotent if it was subjected in all cases to the writ in question.

It seems, too, to be supposed-and such is the view now taken by the Chief-Justice-that no powers are vested in the Executive except such as are expressly delegated by the second article of the Constitution. And, reasoning on this hypothesis, it is contended that the power which the President has exercised is not in him, because not so given by that article. It is submitted that this is an incorrect interpretation of the Constitution. As far as the legislative and judicial departments are concerned the rule is right-as to the first, because in words it is vested only with the specially granted powers; and as to the second, because its particular jurisdiction is prescribed. But this is not true of the Executive department.

and

Again, the power to disregard the writ, The article and section organizing that dewhich the President believes he has, is not the partment begins with saying, "the executive same power given to Congress by the ninth power shall be vested in the President; section of the first article of the Constitution. then proceeds to prescribe the mode of his elecThat looks to a general suspension for a limited tion; and although pointing out certain partictime. During that time, as far as the Govern- ular powers, contains no words limiting him to ment of the United States is concerned, the such powers alone. Nor could this have been writ is totally inoperative. No one, no matter done without giving to the article the prolixity how imprisoned by the authority of the Gov- of a code. The true rule of construction is thereernment, can have the writ. Its total suspen- fore thought to be that all powers of an execusion within the period determined by Congress, tive nature, not denied to the President or given not only covers the cases of persons arrested with limitations, and not inconsistent with the upon treasonable charges or suspicions, but all general character of the Government, are in other cases, irrespective of the causes of arrest. the President by force of the terms, “the execThis is not the power vested in the President. utive power shall be vested in a President." This His authority is measured and limited by the rule was long since laid down by Alexander existing exigency of each arrest. In each in- Hamilton, one of the chief founders of the Constance, if the grounds of the arrest involved in stitution, and one of the ablest of its defenders any way the success of his array of force, he whilst it was under the consideration of the has a right to hold the party till all danger to people. The proclamation of neutrality issued that object is at an end. This being a military by General Washington in April, 1793, was bitquestion, it must be for him, as the command- terly assailed at the time as being beyond his er-in-chief, or his agents, to decide it. He constitutional authority. Hamilton, in a series does not assume the power to suspend the writ of letters under the signature of "Pacificus," in the sense in which that power is in Con- defended it, and in the first of the series laid gress. Congress can repeal it altogether for a down the rule here stated. He maintained that time. Without repealing it he disregards it for the power there exercised was in its nature exthe military end he is bound to accomplish-ecutive, and therefore in the President, and the suppression of the rebellion by force-and referred to the different terms in which the only in such instances as are thought by him to powers are granted to Congress and the Presibe material to that end. The two powers are dent respectively, by the first and second artiby no means identical. The one is legislative, cles, in order to show that although the particthe other is executive. The one is a civil, the ular power was not given to the President by other is a war power. The one a civil, the specific terms, it was given by force of the genother a military question. If the war power eral grant of the executive power. His reasonof every Government may declare martial law ing, which would seem to be conclusive, was -and this no one has yet denied-then it must this: have the power, as one of the admitted incidents of martial law, to disregard the writ in question.

But it is alleged that a control over the writ is exclusively with Congress, because the Constitution gives it to that department, and because it is, in its nature, a legislative power. For the reasons already assigned neither of these grounds is believed to be correct. On the contrary, the war power-that is, the conduct of

"The difficulty of a complete enumeration of all the cases of Executive authority would naturally dictate the use of general terms, and would render it improbable that a specification of certain particulars was designed as a substitute for these terms when antecedently used. The different mode of expression employed in the Constitution in regard to the two powers, the legislative and the executive, serves to confirm this inference. In the article which gives