HEAD-QUARTERS, THIRD TENNESSEE REGIMENT, A. P. Hill, Colonel, Commanding Brigade, ernment of their own, were in arms to maintain the rebellion. The laws of the United States were forcibly resisted; their officers, either voluntarily or through violence, were abandoning their duty and resigning their commissions, and a determination announced by the rebels to continue the rebellion until its success was achieved, and the usurped Government recognized by that of the United States. In this treasonable effort it was believed that there were misguided citizens in Maryland and elsewhere, whose States were yet loyal, who participated in the treason, aided it secretly, and designed to involve their States in the rebellion. In this state of things the President, under his sworn duty to "take care that the laws be faithfully executed," determined on resorting to the means afforded by the second section of the act of 28th February, 1795, and by the act of the 3d of March, 1807. He believed that the laws of the United States were being "opposed," their execution obstructed, "by combinations too powerful to be suppressed by the ordinary course of judicial proceedings, or by the powers vested in the marshals," and he therefore decided, as he was bound to do, "to call forth" such of the militia as he deemed necessary to suppress the combination, and to employ to the same end the land and naval forces of the United States. Of his duty to see to the execution of the laws he could have had no doubt, as that is in words imposed by the Constitution itself. Nor could he have had any doubt of his authority and obligation to resort for that purpose to the powers conferred on him by the laws referred to. The meaning of these laws is free from all question, and the constitutionality of the first was long since sanctioned by a unanimous decision of the I have the honor to report that on yesterday, at eight o'clock P. M., in pursuance of your order, I took two companies of the Thirteenth Virginia Volunteers, C. S. A., commanded by Captains Crittenden and White, and also two companies of the Third Tennessee regiment Volunteers, C. S. A., commanded by Captains Lilliards and Mathas, and advanced eighteen miles west to the line of the enemy, upon the Baltimore and Ohio Railroad, and found them posted in some strength, with two pieces of artillery, on the north bank of the Potomac, at the twenty-first railroad bridge on said road. The | enemy had no pickets posted. At five o'clock A. M., after reconnoitring, I gave the order to charge the enemy, which command, I beg leave to say, was gallantly executed, and in good order, but with great enthusiasm. As we appeared in sight, at a distance of four hundred yards, the enemy broke and fled in all directions, firing as they ran only a few random shots, one of which, however, I regret to say, entered the arm of private Smith, of Captain Lilliard's company, which was in advance, wounding him slightly. The enemy did not wait to fire their artillery, which we captured, consisting of two loaded guns, both of which, however, were spiked by the enemy before they fled. From the best information their number was between two and three hundred. I do not know the loss of the enemy, but several of them were seen to fall. We did not take any prisoners, owing to the start the enemy got, and of our having left in the rear all the horses belonging to my command. I then ordered the twenty-Supreme Court in the case of Martin and Mott, first railroad bridge to be burnt, which was done, and in a few minutes only the piers remained. In further pursuance of your order, I then retired, bringing with me the two guns. The enemy's flag, which I forgot to mention, was captured, and other articles of little value. I cannot close without bringing to your notice the gallant conduct of both officers and men, who were each at their posts, and burning to engage the enemy; and, when the order to charge was given, rushed forward with enthusiasm, wading the river to their waists. I arrived here this evening, the spirits of my men in nowise flagged. JOHN C. VAUGHAN, Colonel Commanding, Third Tennessee Volun teers, Confederate States Army. Doc. 58. POWER OF THE PRESIDENT TO SUS- BY REVERDY JOHNSON. SEVERAL States of the Union having renounced their allegiance and that of their citizens to the Government of the United States, and asserted their right to do so, and organized a GovVOL. II.-Doc. 14 12 Wheat. 19, whilst the validity of the last was never drawn into doubt. In that case it was also decided that the President was the sole judge of the facts which would authorize his use of the means provided by these laws, and that his decision was conclusive not only upon the citizens, but upon every branch of the Government, whether Federal or State. In the language of the Court, "the authority to decide whether the exigency has arisen belongs exclusively to the President, and that his decision is conclusive upon all other persons." The obligation on the President being to suppress the revolt and to "cause the laws to be duly executed," the military authority vested in him for that purpose is to be exercised until the end is attained. The sole limitation is one of time, and that regards only the militia whom he can use but from the period of their call into service till the expiration of thirty days after the commencement of the next session of Congress. It thus appears that the militia and army and navy of the United States, now being used by the President to suppress the rebellion, are in the field by the authority of Congress, in whom the war power is vested, and to whom is also delegated the authority, and consequent ly in such cases the duty, "to provide for call- | corpus, nor authorize any military officer to ing forth the militia to execute the laws of the do so." Union, suppress insurrections, and repel invasions." The entire force has therefore now been "called into the actual service of the United States," and, by the very words of the Constitution, is under the direction of the President as commander-in-chief. Since the publication of this opinion the author of this paper has reviewed the subject, and availed himself of all the light furnished by the Chief-Justice. His original impression, however, that the President's conduct was perfectly constitutional, has but been confirmed. It is the purpose of this paper to state the reasons for this impression. This it is supposed is justified by the nature of the subject and the elevated character of both the high functionaries more immediately concerned. The duty devolved on the President by the obligation to take care that the laws "be faithfully executed," and to use with that view the means furnished by the acts of Congress before referred to, is clearly and exclusively devolved upon him alone. Of its character and extent he is consequently to decide for himself, subject only to his re He is to use them and to exercise, and to authorize others to exercise, all power in their use necessary to attain the end in view, the suppression of the rebellion. The power given him is strictly a military one. It is given because, in such a case as Congress by their legislation | assume, a state of quasi war exists between the Government and the rebels. Not only the safety but the very existence of the Government depends on the result. The rebellion must be suppressed, or the integrity of the Government suspended, impaired, or destroyed. In such a case it is evident that "the public safety" re-sponsibility to the people and to Congress. If, quires the use of every legitimate means necessary to accomplish the end, the extinction of the rebellion, that are expressly or impliedly delegated to the President by Congress. contrary to his own judgment, he abandons that judgment and suffers hmiself to be governed by the judgment of any coordinate authority of the Government, he would be false to his duty, Believing that instances might occur in Mary- and do any thing but fulfil "his constitutional land or elsewhere where the purpose might be obligation" to "take care that the laws be endangered if the civil proceeding by habeas faithfully executed." For this principle there corpus was suffered uninterruptedly to prevail, is the high authority of a former distinguished the President authorized the commanding officer President, Gen. Jackson. When, in July, 1832, for the time being, through the commander-in- it was urged upon him that a measure submitchief, to disregard it, if in his judgement the ted for his action as President was conclusively public safety demanded it, and to vouch him settled to be constitutional by an opinion, not of for his authority. This step was taken with no a single judge of the Supreme Court, but of the view to oppress the citizen, or illegally inter- entire Court, he held that that "ought not to fere with the ordinary course of civil justice, control the co-ordinate authorities of the Govbut solely from a conviction that it was in- ernment; " that "Congress, the Executive, and dispensable to the public safety, so clearly in- the Court must each for itself be. guided by its volved in the suppression of the rebellion. As own opinion of the Constitution. Each public no general dispensation of the writ was deem- officer who takes an oath to support the Coned necessary, but merely in certain cases of stitution swears that he will support it as he which the officer in command was, in the first understands it, and not as it is understood by instance, necessarily to judge, no notice was others. It is as much the duty of the House given that the writ would be suspended. Such of Representatives, of the Senate, and of the a notice would have been out of place where President to decide upon the constitutionality the design was to suspend it in particular cases of any bill or resolution which may be presentonly, whose special circumstances could not ined to them for passage or approval, as it is of advance be known, and of course could not be stated in a notice. Under this authority, delegated to Gen. Cadwalader, a case occurred— that of John Merryman, of Maryland-in which that officer refused to obey such a writ issued by the Chief-Justice of the United States. That high officer has since filed his opinion, and has, it is said, caused a copy of the same, with all the proceedings, to be transmitted to the President, with whom, to use the words of the Chief-Justice, it will "remain," in fulfilment of his constitutional obligations, to "take care that the laws be faithfully executed," to determine what means he will take to cause the civil process of the United States to be respected and enforced." In this opinion the Chief-Justice decides that "the President, under the Constitution and laws of the United States, cannot suspend the privilege of the writ of habeas the Supreme Judges, when it may be brought before them for judicial decision." The correctness of this doctrine, as applied to any constitutional power vested in either of the three branches of the Government for its separate action, has never been seriously questioned. To hold otherwise would be to attach superiority to one over the rest. Each being coordinate and clothed with its respective powers, each must judge for itself what those powers are, and act accordingly, not in subordination to, but independently of, the others. The power, then, which the President exercises in such a case is clearly conferred upon him, and on him alone, as President. It is made so by the Constitution and laws, and he is therefore the sole judge of its nature and limits. What, then, is the law? First. The writ of habeas corpus, except as hereinafter stated, is nowhere mentioned in the cause of the terms with which the article begins, Constitution or secured to the citizen by any "all legislative powers herein granted shall be general phraseology. Independent of the ex- vested in Congress," excluding of course all ception alluded to, the writ being given or re- powers not embraced by the grant. This being cognized by law might have by law been repeal- the scope of the power which is in any one of ed, and consequently have been repealed by the instances delegated by the 8th section of the Congress, in whom was vested, but for the ex- article, that cannot, by any latitude of construcception, ample power for that purpose. The tion even, be held to vest in Congress exclusivelegislative authority of that body is delegated, ly the right to suspend the writ of habeas cornot by the entire first article of the Constitution, pus. It is safe to say that there is not one. but by the eighth section of that article alone. Unlike the British Parliament, Congress has Under these powers it is clear that Congress no legislative authority other than that expressmight have refused to authorize a writ. With-ly delegated or reasonably to be implied from out such authority no court or judge of the what is delegated. If therefore, as will be eviUnited States could issue it; and because of dent from an examination of the 8th section, this, Congress passed the fourteenth section of there is nothing in it giving the power to susthe judiciary act of 1789. The officer or court pend the writ to Congress alone, that power, to issue the writ being to be designated by Con- if found anywhere, is not in the only section gress, Congress might now repeal that part of which confers legislative power. But it is said the act, and the writ would not exist as a rem- that the restriction on the authority to suspend edy under the Government of the Union. That the writ being in the 2d paragraph of the 9th such a measure would be wrong is admitted; section, and the entire article having "not the but it would not be such a wrong as would make slightest reference to the Executive Departit unconstitutional. Its correction would be ment," shows that the power to suspend the left with the people, as its occurrence is not to be writ was intended to be vested in Congress anticipated because of the responsibility of Con- alone. The error of this statement has already gress to the people. But occurring, and as long been pointed out by referring to the nature of as it might continue, the writ would be of the 10th section of the article, which is wholly no avail under the Government of the Union. devoted to the negation of power to the States, The exception referred to is in the second and not to the grant of power to Congress. paragraph of the ninth section of the article. But the error is also apparent, though not to This is the paragraph which it is supposed ren- the same extent, by the provisions in the 9th ders the conduct of the President in the partic-section itself. The 7th paragraph of the secular under consideration so clearly unconstitu- tion as clearly embraces the Executive as does tional, and "too plain and too well settled," any part of the succeeding one. By that paras unconstitutional, "to be open to dispute." agraph it is provided that, no money shall be The words of the paragraph are: "The privilege drawn from the Treasury but by appropriations of the writ of habeas corpus shall not be suspend- made by law, and a regular statement and aced unless when, in case of rebellion or invasion, count of the receipts and expenditures of all the public safety may require it." It is said public money shall be published from time to that this clause is in the article "devoted to the time." These clearly, so far from not having Legislative department,' "and has not the "the slightest reference to the Executive deslightest reference to the Executive depart-partment," refer almost exclusively to that dement," and was designed, therefore, to give the particular power to suspend the writ exclusively to Congress. partment. The Treasury is and must be under the Executive control. A restraint, therefore, on the authority to draw money out of the In the first place, the statement is erroneous Treasury, directly and exclusively applies to the in point of fact. It is true that the general ob- department. So again, in the following, the ject of the article is to constitute the legislative 8th paragraph: "No person holding any office of department, and to confer on it all the legisla-profit or trust under them, [the United States, ] tive authority of the Government. But that is shall, without the consent of Congress, accept not its exclusive purpose. The 10th section of of any present, emolument, office, or title of the article has nothing to do with the legisla- any kind whatever from any king, prince, or tive power of the Union. It is devoted alto- foreign State." Officers of the United States gether to restraints on State power. These are are a part of the Executive department, and, made in certain cases absolute, and in others but for this prohibition, could accept the things dependent on Congressional assent, but they here prohibited. This clause, therefore, like the contain no grant of legislative power to Con- other, so far from not having "the slightest gress. That power, and the whole that the body respect to the Executive department," refers possesses, is given by the 8th section. That sec- directly and exclusively to that department. tion commences with saying, "The Congress The assumption, then, of the Chief-Justice shall have power," and in eighteen paragraphs as to the nature of the article being unfoundstates the cases to which the power is to extend. ed, the weight of the argument, whatever that The exclusion of all other powers than those would otherwise be, founded on the assumption there given is not only admitted, because the totally fails. powers of Congress are all enumerated, but be But there are other reesons for supposing 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 confer 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 arms.' 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 is equally subject, whether the clause includes that department or not, as the power can never be an executive one, except in the cases mentioned in the clause; that is to say, when, in certain cases, in the judgment of the Executivenot of a court, much less of a single judge "the public safety" requires its exercise. With these remarks on the clause we will now inquire if the power, in the existing exigencies of the country, is not an Executive one. and directs that "no warrants shall issue but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched and the persons or things to be seized." These securities were properly thought to be so vital to the safety of the people that they were made the subjects of express guarantee. With these securities no department of the Government in time of peace can interfere. But are they not suspended in time of war? If, 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 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 arms, 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 safety may require it." The writ, too, is given the enemy fatal to his plans be practically be- but to secure a personal right, whilst the other yond his reach. The absurdity of these results guarantees embrace not only that right, but demonstrates that in time of war these civil nearly all others of person and property. 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 endanger 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 "The remaining question," he said, "is rebellion, and be not in session, as was the case whether the defendants, acting under military in this instance, and perhaps not to be convened orders, issued under the authority of the Govfor 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 |