GENERAL.

481

Hence, keeping the sovereignty always out of sight, they adopted the plan of "checks and balances," forming separate departments of government, and giving each department separate and limited powers. These departments are co-ordinate and co-equal that is, neither being sovereign, each is independent in its sphere, and not subordinate to the others, either of them or both of them together. We have three of these co-ordinate departments. Now, if we allow one of the three to determine the extent of its own powers, and also the extent of the powers of the other two, that one can control the whole government, and has, in fact, achieved the sovereignty.

We ought not to say that our system is perfect, for its defects (perhaps inevitable in all human things) are obvious. Our fathers, having divided the government into co-ordinate departments, did not even try (and if they had tried, would probably have failed) to create an arbiter among them to adjudge their conflicts and keep them within their respective bounds. They were left, by design, I suppose, each independent and free, to act out its own granted powers, without any ordained legal superior possessing the power to revise and reverse its action. And this with the hope that the three departments, mutually co-equal and independent, would keep each other within their proper spheres by their mutual antagonism—that is, by the system of checks and balances, to which our fathers were driven at the beginning, by their fear of the unity of power.

In this view of the subject it is quite possible for the same identical question (not case) to come up legitimately before each one of the three departments, and be determined in three different ways, and each decision stand irrevocable, binding upon the parties to each case; and that, for the simple reason that the departments are co-ordinate, and there is no ordained legal superior, with power to revise and reverse their decisions.

To say that the departments of our government are co-ordinate, is to say that the judgment of one of them is not binding upon the other two, as to the arguments and principles involved in the judgment. It binds only the parties to the case decided. But if, admitting that the departments of government are co-ordinate, it be still contended that the principles adopted by one department, in deciding a case properly before it, are binding upon another department, that obligation must of necessity be reciprocal-that is, if the President be bound by the principles laid down by the judiciary, so also is the judiciary bound by the principles laid down by the

stitutional government flatly contradicting itself. Departments co-ordinate and co-equal, and yet reciprocally subordinate to each other! That cannot be. The several departments, though far from sov ereign, are free and independent, in the exercise of the limited powers granted to them respectively by the Constitution. Our government indeed, as a whole, is not vested with the sovereignty, and does not possess all the powers of the nation. It has no powers but such as are granted by the Constitution; and many powers are expressly withheld. The nation certainly s co-equal with all other nations, and has equal powers, but it has not chosen to delegate all its powers to this government, in any or all of its departments.

The government, as a whole, is limited, and limited in all its departments. It is the especial function of the judiciary to hear and determine cases, not to "establish principles," nor "settle questions," so as to conclude any person but the parties and privies to the cases adjudged. Its powers are specially granted and defined by the Constitution, article 3, section 2:

"The judicial power shall extend to all cases in law and equity arising under this Constitution, the laws of the United States, and treaties made, and which shall be made, under their authority; to all cases affecting ambassadors, other ministers and consuls; to all cases of admiralty and maritime jurisdiction; to controversies to which the United States shall be a party; to controversies between two or more States; between States and citizens of other States; between citizens of different States; between citizens of the same State claiming lands under grants of different States, and between a State, or the citizens thereof, and foreign States, citizens or subjects." And that is the sum of its powers, ample and efficient for all the purposes of distributive justice among individual parties, but powerless to impose rules of action and of judgment upon the other departments. Indeed, it is not itself bound by its own decisions, for it can and often does overrule and disregard them, as, in common hon. esty, it ought to do, whenever it finds, by its after and better lights, that its former judgments were wrong.

This last is not more an executive power when used by the President than it is when exercised by either House of Congress, by the courts of justice, or by the people at large.

The President is a department of the Government; and, although the only department which consists of a single man, he is charged with a greater range and variety of powers and duties than any other department. He is a civil magistrate, not a military chief; and in this regard we see a striking proof of the generality of the sentiment prevailing in this country at the time of the formation of our Government, to the effect that the military ought to be held in strict subordination to the civil power. For the Constitution, while it grants to Congress the unrestricted power to declare war, to raise and support armies, and to provide and maintain a navy, at the same time guards carefully against the abuse of that power, by withholding from Congress and from the army itself the authority to appoint the chief commander of a force so potent for good or for evil to the State. The Constitution provides that "the President shall be Commander-in-Chief of the army and navy of the United States, and of the militia of the several States when called into the actual service of the United States." And why is this? Surely not because the President is supposed to be, or commonly is, in fact, a military man-a man skilled in the art of war and qualified to marshal a host in the field of battle. No, it is for quite a different reason; it is that whatever skillful soldier may lead our armies to victory against a foreign foe, or may quell a domestic insurrection; however high he may raise his professional renown, and whatever martial glory he may win, still he is subject to the orders of the civil magistrate, and he and his army are always "subordinate to the civil power."

And hence it follows, that whenever the President, (the civil magistrate,) in the discharge of his constitutional duty, to "take care that the laws be faithfully executed," has occasion to use the army to aid him in the performance of that duty, he does not thereby lose his civil character and become a soldier, subject to military law and liable to be tried by a court-martial, any more than does a civil court lose its legal and pacific nature and become military and belligerent by calling out the power of the country to enforce its decrees. The civil magistrates, whether judicial or executive, must of necessity employ physical power to aid them in enforcing the laws, whenever they have to deal with disobedient and refractory subjects; and their legal power and right to do so is unquestionable. The right of the courts to call out the whole power of the country to enforce their judgments, is as old as the common law; and the right of the President to use force

in the performance of his legal duties is not only inherent in his office, but has been frequently recog nized and aided by Congress. One striking example of this is the act of Congress of March 3d, 1807, (2 Stat., 445,) which empowered the President, without the intervention of any court, to use the marshal, and, if he be insufficient, to use the army, summarily to expel intruders and squatters upon the public lands. And that power has been frequently exercised, without, as far as I know, a question of its legality. To call, as is sometimes done, the judiciary the civil power, and the President the military power, seems to me at once a mistake of fact and an abuse of language.

While the judiciary and the President, as departments of the General Government, are co-ordinate, equal in dignity and power, and equally trusted by the law, in their respective spheres, there is, never theless, a marked diversity in the character of their functions and their modes of action. The judiciary is, for the most part, passive. It rarely, if ever, takes the initiative; it seldom or never begins an operation. Its great function is judgment, and, in the exercise of that function, it is confined almost exclusively to cases not selected by itself, but made and submitted by others. The President, on the contrary, by the very nature of his office, is active; he must often take the initiative; he must begin operations. His great function is execution, for he is required by the Constitution (and he is the only department that is so required) to "take care that the laws (all the laws) be faithfully executed," and in the exercise of that function, his duties are coextensive with the laws of the land.

Often, he comes to the aid of the judiciary, in the execution of its judgments; and this is only a part, and a small part, of his constitutional duty, to take care that the laws be faithfully executed. I say it is a small part of his duty, because for every instance in which the President executes the judg ment of a court, there are a hundred instances in which he executes the law, without the intervention of the judiciary, and without referring at all to its functions.

I have premised this much in order to show the separate and independent character of the several departments of our Government, and to indicate the inevitable differences in their modes of action, and the characteristic diversity of the subjects upon which they operate; and all this as a foundation for the answers which I will now proceed to give to the particular questions propounded to me.

As to the first question, I am clearly of opinion that, in a time like the present, when the very ex istence of the nation is assailed, by a great and dan gerous insurrection, the President has the lawful,

This is a great power in the hands of the Chief Magistrate; and because it is great, and is capable of being perverted to evil ends, its existence has been doubted or denied. It is said to be dangerous in the bands of an ambitious and wicked President, because he may use it for the purposes of oppression and tyranny. Yes, certainly it is dangerousall power is dangerous-and for the all-pervading reason that all power is liable to abuse; all the recipients of human power are men, not absolutely virtuous and wise. Still it is a power necessary to the peace and safety of the country, and undeniably belongs to the Government, and therefore must be exercised by some department or officer thereof.

Why should this power be denied to the President, on the ground of its liability to abuse, and not denied to the other departments on the same ground? Are they more exempt then he is from the frailties and vices of humanity? Or are they more trusted by the law than he is trusted, in their several spheres of action? If it be said that a President may be ambitious and unscrupulous, it may be said with equal truth that a Legislature may be factious and unprincipled, and a court may be venal and corrupt. But these are crimes never to be presumed, even against a private man, and much less against any high and highly trusted public functionary. They are crimes, however, recognized as such, and made punishable by the Constitution; and whoever is guilty of them, whether a President, a Senator or a Judge, is liable to impeachment and condemnation. As to the second question:

Having assumed, in answering the first question, that the President has the legal discretionary power to arrest and imprison persons who are guilty of holding criminal intercourse with men engaged in a great and dangerous insurrection, or persons suspected, with probable cause," of such criminal complicity, it might seem unnecessary to go into any prolonged argument to prove that, in such a case, the President is fully justified in refusing to obey a writ of habeas corpus, issued by a court or judge, commanding him to produce the body of his prisoner, and state when he took him, and by what authority, and for what cause he detains him in custody and then, yield himself to judgment, "to do, submit to, and receive whatsoever the judge or court, awarding the writ, shall consider in that behalf."

If it be true, as I have assumed, that the PresiCent and the judiciary are co-ordinate departments of Government, and the one not subordinate to the other, I do not understand how it can be legally · possible for a judge to issue a command to the President to come before him ad subjiciendum-that is, to submi: implicitly to his judgment-and, in

case of disobedience, treat him as a criminal, in contempt of a superior authority, and punish him as for a misdemeanor, by fine and imprisonment. It is no answer to say, as has sometimes been said, that although the writ of habeas corpus cannot be issued and enforced against the President himself, yet that it can be against any of his subordinates; for that abandons the principle assumed, of giving relief in all cases" of imprisonment by color of authority of the United States, and attempts to take an untenable distinction between the person of the Presi dent and his office and legal power. The law takes no such distinction, for it is no respecter of persons. The President, in the arrest and imprisonment of men, must, almost always, act by subordinate agents; and yet the thing done is no less his act than if done by his own hand. But it is impossible for the President to be in the actual custody of a prisoner, taken in civil war or arrested on suspicion of be. ing a secret agent and abettor of rebellion, and in that case the writ must be unavailing, unless it run against the President himself. Besides, the whole matter is political, and not judicial. The insurrection itself is purely political. Its object is to destroy the political Government of this nation, and to establish another political Government upon its ruins. And the President, as the chief civil magis trate of the nation, and the most active department of the Government, is eminently and exclusively political in all his principal functions. As the political chief of the nation, the Constitution charges him with its preservation, protection and defense, and requires him to take care that the laws be faithfully executed. And in that character, and by the aid of the acts of Congress of 1795 and 1807, he wages open war against armed rebellion, and arrests and holds in safe custody those whom, in the exercise of his political discretion, he believes to be friends of, and accomplices in, the armed insurrection, which it is his especial political duty to suppress. He has no judicial powers. And the judiciary department has no political powers, and claims none, and therefore (as well as for other reasons already assigned,) no court or judge can take cognizance of the political acts of the President, or undertake to revise and reverse his political decisions.

The jurisdiction exercised under the writ of habeas corpus is in the nature of an appeal, (4 Cr., 75,) for as far as concerns the right of the prisoner, the whole object of the process is to re-examine and reverse or affirm the acts of the person who imprisoned him. And I think it will hardly be seri ously affirmed, that a judge, at chambers, can entertain an appeal, in any form, from a decision of the President of the United States-and especially in a case purely political.

GENERAL.

485

1, section 9, clause 2-which is in these words: "The privilege of the writ of habeas corpus shall not be suspended, unless when, in cases of rebellion or invasion, the public safety may require it."

Very learned persons have differed widely about the meaning of this short sentence, and I am by no means confident that I understand it myself. The sententious language of the Constitution, in this particular, must, I suppose, be interpreted with reference to the origin of our people, their historical relations to the mother country, and their inchoate political condition at the moment when our Constitution was formed. At that time the United States, as a nation, had no common law of its own, and no statutory provision for the writ of habeas corpus. Still, the people, English by descent, even while in open rebellion against the English crown, claimed a sort of historical right to the forms of English law and the guarantees of English freedom. They knew that the English Government had, more than once, assumed the power to imprison whom it would, and hold them, for an indefinite time, beyond the reach of judicial examination; and they desired, no doubt, to interpose a guard against the like abuses in this country. And hence the clause of the Constitution now under consideration. But we must try to construe the words, vague and indeterminate as they are, as we find them. "The privilege of the writ of habeas corpus shall not be suspended," &c. Does that mean that the writ itself shall not be issued, or that, being issued, the party shall derive no benefit from it? "Suspended"-does that mean delayed, hung up for a time, or altogether denied? "The writ of habeas corpus"---which writ? In England there were many writs called by that name, and used by the courts for the more convenient exercise of their various powers; and our Own courts now, by acts of Congress-the Judiciary Act of 1789, section 14, and the act of March 2, 1833, section 7-have, I believe, equivalent powers.

It has been decided by the Supreme Court, and I doubt not correctly-see Bollman and Swartwout's case, (4 Cr., 93,)-that "for the meaning of the term habeas corpus, resort must be had to the common law, but the power to award the writ, by any of the courts of the United States, must be given by written law." And the same high court-judging, no doubt by the history of our own people and the circumstances of the times-has also decided that the writ of habeas corpus mentioned in the Constitution is the great writ ad subjiciendum.

That writ, in its nature, action and objects, is tersely and accurately described by Sir William Blackstone. I adopt his language, as found in his

ment, is that of habeas corpus ad subjiciendum, directed to the person detaining another and commanding him to produce the body of the prisoner, with the day and cause of his caption and deten tion, ad faciendum, subjiciendum et recipiendum, to do, submit to, and receive whatsoever the judge or court awarding such writ shall consider in that behalf. This is a high prerogative writ, and therefore by the common law, issuing out of the Court of King's Bench, not only in term time, but also during the vacation, by a fiat from the Chief Justice or or any other of the judges, and running into all parts of the king's dominions; for the king is at all times entitled to have an account why the liberty of any of his subjects is restrained, wherever that restraint may be inflicted."

Such is the writ of habeas corpus, of which the Constitution declares that the privilege thereof shall not be suspended, except when, in cases of rebellion or invasion, the public safety may require it. But the Constitution is silent as to who may suspend it when the contingency happens. I am aware that it has been declared by the Supreme Court, that "if, at any time, the public safety should require the suspension of the powers vested by this act, (meaning the Judiciary Act of 1789, section 14,) in the courts of the United States, it is for the Legislature to say so. That question depends upon political considerations, on which the Legislature is to decide." Upon this, I remark only, that the Constitution is older than the Judiciary Act, and yet it speaks of the privilege of the writ of habeas corpus as a thing in existence; it is in general terms, and does not speak with particular reference to powers which might or might not be granted by a future act of Congress. Besides, I take it for cer tain that in the common course of legislation, Congress has power, at any time, to repeal the Judiciary Act of 1789, and the act of 1833, (which grants to the courts and to the judges the power to issue the writs,) without waiting for a rebellion or invasion, and a consequent public necessity, to justify, under the Constitution, the suspension of the writ of habeas corpus. The court does not speak of suspending the privilege of the writ, but of suspending the powers vested in the court by the act. The power to issue a writ can hardly be called a privilege, yet the right of an individual to invoke the protection of his Government in that form may well be designated by that name. And I should infer, with a good deal of confidence. that the court meant to speak only of its own powers, and not of the privilege of individuals, but for the fact that the Court ascribes the power to suspend to the Legisla