distinguish this case from the one before us. An effort was there made to destroy the government of Rhode Island by means of an arm is as necessary to the States of this Union as to any other Government. The State itself must determine what degree of force the crisis demands. And if the government of Rhode Isl-ed rebellion. It was deemed by the State to and 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 informa-ervation of order and free institutions, and is tion 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." 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 revise,) 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 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 presas 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 made under the authority of the latter to subserve 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 officer 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 success. 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 | lion and the restoration of the unmolested defence sustained by the Court on that ground course of the laws of the United States-to alone, and as justified by the rights and usages deny obedience to the writ in the cases supof war. posed. 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 said that this power in the President is dangerous to liberty, and may be abused. All power may be abused if placed in unworthy hands. But it would be difficult, we think, to point out any other hands in which this power would be more safe, and at the same time equally effectual. When citizens of the same State are in arms against each other, and the constituted authorities unable to execute the laws, the interposition of the United States must be prompt, or it is of little value. The ordinary course of proceedings in courts of justice would be utterly unfit for the crisis. And the elevated office of the President, chosen as he is by the people of the United States, and the high responsibility he could not fail to feel when acting in a case of so much moment, appear to furnish as strong safeguards against a wilful abuse of power as human prudence and foresight could well provide. At all events, it is conferred upon him by the Constitution and laws of the United States, and therefore must be respected and enforced in its judicial tribunals." 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 department. The legislative department, in the exercise of its mere authority to declare war, is not authorized to declare martial law. The last authority arises after, and because the first is exercised. From its very nature it can only be exercised by the power in which is vested the power to conduct the war. The necessity which is to make it advisable depends on place and time, and the present exigencies of the contest. A whole State is not to be subjected to it when a part only is threatened by the enemy, or is in rebellion. Martial law is a means which is afforded for conducting the war, and is of course to be exercised by the department having charge of its conduct. Under the Constitution of the United States it is clear that although the power to declare war is vested solely in Congress, the conduct of the war is solely with the President. Over this last Congress has no other control than such as a control over the supplies affords. If the authority to institute martial law in case of war or rebellion 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 would be "utterly unfit." Resort to the civil condition to judge understandingly of the ex-law or to its ministers is nowhere directed or igency and to apply the remedy. suggested. What is to be done is to be done That the principles thus decided authorized by force of arms, which implies the absence and made it the duty of the President to deny and inadequacy of every other resort. He has the writ in such cases as he or his legally dele-to fight the rebels and capture or subdue them gated 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 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 comparatively 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. The article and section organizing that department begins with saying, "the executive power shall be vested in the President;" and then proceeds to prescribe the mode of his election; and although pointing out certain particular powers, contains no words limiting him to such powers alone. Nor could this have been done without giving to the article the prolixity of a code. The true rule of construction is therefore thought to be that all powers of an executive nature, not denied to the President or given with limitations, and not inconsistent with the general character of the Government, are in the President by force of the terms, "the executice power shall be vested in a President." This rule was long since laid down by Alexander Hamilton, one of the chief founders of the Con Again, the power to disregard the writ, which the President believes he has, is not the same power given to Congress by the ninth section of the first article of the Constitution. That looks to a general suspension for a limited time. During that time, as far as the Government of the United States is concerned, the writ is totally inoperative. No one, no matter how imprisoned by the authority of the Government, can have the writ. Its total suspension within the period determined by Congress, not only covers the cases of persons arrested upon treasonable charges or suspicions, but all other cases, irrespective of the causes of arrest. This is not the power vested in the President. His authority is measured and limited by the existing exigency of each arrest. In each instance, if the grounds of the arrest involved institution, 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 Government resting as to nearly all its powers upon usage and precedent, or to the otherwise unsupported authority of the Chief-Justice, and especially when, as in this instance, he seems to have departed from or forgotten the doctrines he maintained in the case in Howard. the legislative powers of the Government the | son's conduct at New Orleans in 1807-conduct expressions are, all legislative powers herein in fact approved by him, and not disapproved granted shall be vested in the Congress of the of by any Congressional legislation—a comUnited States.' In that which grants the ex-mentary on the English form of government, a ecutive power, the expressions are, the executive power shall be vested in a President of the United States.' The enumeration ought, therefore, to be considered as intended merely to specify the principal articles implied in the definition of executive power; leaving the rest to flow from the general grant of that power, interpreted in conformity with other parts of the Constitution, and with the principles of free government. The general doctrine of our Constitution, then, is that the executive power of the United States is vested in the President; subject only to the exceptions and qualifications which are expressed in the instrument." These letters were replied to by Mr. Madison, with the ability which ever characterized him, in a series of others under the signature of "Helvidius; " and although he contested almost every other constitutional proposition of Hamilton, he nowhere called into doubt the correctness of his rule of construction. His silence under the circumstances must, therefore, be assumed as his assent to the rule; and the rule, therefore, stands on the highest authority we can have-that of the two ablest and purest statesmen the country has ever possessed, and who were especially conspicuous in giving us the Constitution which, uniting us as one people for all purposes requiring such a union, has so exclusively and greatly promoted our power and prosperity as a nation. The rule, too, was maintained in the strongest terms by President Jackson in his protest of the 15th of April, 1834. That rule, then, being the true one, the only question in the case is, whether the power which the President is exercising is in its nature an executive one. That it is, has been, it is believed, satisfactorily shown; and under the rule stated by Hamilton, impliedly sanctioned by Madison, and expressly adopted by Jackson, it is in the President by force of the general delegation to him of the Executive power. If with the opinion the President now is supposed to hold, to use in part the words of President Jackson, in the protest referred to, he should "be induced to act in a matter of official duty contrary to the honest convictions of his own mind, in compliance with the " (opinion of the Chief-Justice) "the constitutional independence of the Executive department would be as effectually destroyed and its power as effectually transferred to" (the Judiciary department) as if that end had been accomplished by an amendment to the Constitution. This paper has been made the more elaborate because of the justly high character of the Chief-Justice of the United States, and because of a desire to satisfy the judgment of the people of the country upon the point in issue between that functionary and the President; a people whom the President is faithfully serving with all the ability he possesses in this crisis of their Government, and whom he hopes to be able, when he retires from the elevated office in which their confidence has placed him, to leave in the peaceful and happy enjoyment of an unbroken Union, and an undisturbed and faithful execution of the laws. Doc. 59. A VIRGINIAN WHO IS NOT A TRAITOR. PROCLAMATION OF GOV. LETCHER. U. S. Ship ST. MARY'S, Mare Island, Cal. To John Letcher, Governor of Virginia: SIR-I have this day seen for the first time an ordinance of "the Convention" issued"the injunction of secrecy being removed in form of a proclamation by order of the Governor, by Geo. W. Munford, Secretary of the Commonwealth. One section of this ordinance Upon the whole, then, the President, it is thought, has had no doubt, and is believed not now to entertain any, as to the authority which he has exercised, and will, it is supposed, continue to exercise. On such a point he would naturally be guided by such general reasoning as is here assigned-the authority of Gen. Jack-reads thus: son's example at New Orleans, (not mentioned by the Chief-Justice,) afterwards impliedly sanctioned by Congress, who indemnified him for its exercise, and the solemn decision of the Supreme Court, before mentioned, pronounced thirteen years since, and never afterwards questioned by that or any other tribunal-rather than by the authorities relied on by the ChiefJustice, that is to say, a clearly extra-judicial John Letcher, for the sake of the American observation of Chief-Justice Marshall, a mere character, I deplore that the "injunction of doubt of Mr. Justice Story, an alleged doubt of secrecy " was removed. I was slow to believe Mr. Jefferson, nowhere, however, proved to that any body of Virginians, met in solemn have been felt, of the legality of Gen. Wilkin-convention, could have deliberately authorized "And that he (the Governor) shall immediately invite all efficient and worthy Virginians, and residents of Virginia in the Army and Navy of the United States, to retire therefrom and to enter the service of Virginia, assigning to them such rank as will not reverse the relative rank held by them in the United States service, and will be at least equivalent thereto." you, the Governor, to "invite" all efficient | Convention," made "public" by you, its organ. and worthy Virginians, and residents of Vir- It is cut from the same "secret" piece, dyed in ginia in the Army and Navy of the United the wool, as the perfidy of Harper's Ferry and States, to betray their trust, to turn their hand, Gosport Navy Yard. I decline to yield myself their efficiency, and their worth against the flag upon the invitation of "The Convention," a which has given them all they have and all disgraceful subordinate to Jeff. Davis, and unthey are worth. I can hardly believe that worthy and inefficient Virginian that I am, not any body of the select men of the Old Domin- all the wealth, biped and landed; not all the ion could "invite " any man through their Gov- honors which the Old Dominion can create, ernor, whether an "efficient or worthy Virgin- will ever seduce me from a full and unreserved ian or even the bugbear of a Yankee "resident devotion to the Stars and Stripes. of Virginia," to become an honorable deserter. You, sir, might have restored peace to your Even with the tangible evidence before me, I country, but you would not. W. K. MAYO, am in doubt as to the identity of the ordinance. Lieutenant United States Navy. Doc. 60. MEETING AT DOVER, DELAWARE, THE following are the resolutions passed on the occasion: I feel assured, sir, that the fifty odd loyal and true men-reduced by some secret" political hocuspocus to a baker's dozen-who voted against secession, did their best to save the State from this execrable abuse of its people. Western Virginia, certainly, does not lend itself to such "invitations." If I remember aright, sir, the leading State Rights men of Virginia declared, at the time of the Hartford Conven- 1. Resolved, That while we deeply deplore tion, that the secession of a State from the the revolution which has severed eleven States Federal Union was treason. How can leading from the Union, we prefer peace to civil war, State Rights men from Virginia now "invite and believe that if a reconciliation by peaceful the military officers of that same Federal Union means shall become impossible, the acknowlto commit the sin which then was so damna-edgment of the independence of the Confederate ble? What system of morals works the change? John Letcher, I am not a politician, though I am a Virginian by birth. I am no Southerner, nor Northerner, nor Western man. I am a citizen of the United States. It requires no political acumen to discover that "The Convention," whose orders you obey by publishing its own precept "for the benefit of the public,' perpetrated a gross fraud upon the people of Virginia and a grosser outrage upon the people and Government of the United States. Your Convention has precipitated the State into hostility against the Government, and has insulted the people. It has, however, as an offset shown the hand of those who now, unhappily, direct the State. John Letcher, I am not your mercenary, nor the mercenary of "The Convention."-My primary and only allegiance is due and rendered to the United States. The United States has cared for me for many years, and its flag is endeared to me by too many associations to be lightly abandoned and turned against in this hour of its direst peril, particularly upon the promises to pay of an exhausted Treasury and the promises of "rank" from a State whose militia, by her own showing and invitation, is commanded by a foreigner, who is a traitor to that Government to which the people of Virginia are faithful despite the unholy and unpatriotic action of "The Convention." If, sir, I were to forsake the Stars and Stripes in this dread hour and join your banner, what assurance would you have that I would not betray you? Surely not that of honor, not that of patriotism. States is preferable to an attempt to conquer and hold them as subjugated provinces. 2. That the reign of terror attempted to be inaugurated by the war party, by denouncing all men as disunionists, secessionists, and traitors, who are opposed to civil war, and to the palpable and gross violations of the Constitution, committed by the present Administration, will not deter us from the expression of our opinions, both privately and publicly. 3. That we believe the effect of the doctrines and measures of the war party, if not their object and intent, under the name of preserving the Union, will be the subversion of the State Governments, and the erection of a consolidated government on the ruins of the Federal Constitution. Resolved, That we tender our grateful thanks to Senators Bayard and Saulsbury, for the bold and patriotic stand they assumed, in the recent session of the Thirty-sixth Congress, for the maintenance of the peace and prosperity of our now distracted country, and we earnestly request them to use all honorable means to bring the "civil war "which now hangs over us like an incubus, to a speedy close, and, if in their judgment no other mode presents itself whereby this end can be attained, to advocate the acknowledgment by the United States Government of the independence of the Confederate States, so that peace and prosperity may be restored among us. Resolved, That the menace demanding the resignation of the Hon. James A. Bayard, one of our Senators in the Senate of the United States, originated in mob spirit, and should reJohn Letcher, Governor of Virginia, I scorn- ceive from him the scorn and contempt which fully reject the infamous proposal of "The lit merits from every honorable man. |