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legislative body of the danger of suspending it, and of the extreme
caution they should exercise before they give the Grovernment of the
United States such power over the liberty of a citizen.

" It is the second article of the Constitution that provides for the
organization of the Executive Department, and enumerates the
powers conferred on it, and prescribes its duties. And if the high
power over the liberties of the citizens now claimed was intended to
be conferred on the President, it would, undoubtedly, be found in
plain words in this article. But there is not a word in it that can
furnish the slightest ground to justify the exercise of the power."

That a clause standing in the Constitution before the
clause providing that there shall be a President, and before
the office has even been named, except in the most incidental
way, in defining the functions of other departments as they
connect with it — and put into an article devoted to another
department — should relate to powers of the President —
seems hardly possible to be believed by persons having the
common capacity for the interpretation of written language,
much less by those trained in our courts and at the head of
our Government. It is certainly a desperate shift, to base
the Executive usurpation of this power upon this clause
of the Constitution.

3. The opinions of our highest Federal Courts, and of the
most eminent expounders of Constitutional law. We have
before us the opinions of Chief Justice Taney and Justice


Treat, in two of the courts of the United States. We will
add only two other authorities, which cannot be surpassed
in weight with any intelligent American citizen. The first
is the opinion of the Supreme Court of the United States,
pronounced by Chief Justice Marshall. In 4 Cranch, 95
and 101, referring to the Judiciary Act of 1789— and deliv-
ering the opinion of the Court— that illustrious ornament of
the American Bench uses this language :

" It may be worthy of remark, that this act was passed by the
first Congress of the United States sitting under a Constitution
which had declared that ' the privilege of the writ of habeas corpus
should not be suspended, unless when, in cases of rebellion or insur-
rection, the public safety might require it.' Acting under the imme-
diate influence of this injunction they must have felt, with peculiar
force, the obligation of providing efficient means by which this great
constitutional privilege should receive life and activity ; for if the
means be not in existence the privilege itself would be lost, although
no law for its suspension should be enacted. Under the impression
of this obligation, they gave to all the courts the power of awarding
writs of habeas corpus. * * * * If at any time the public
safety should require the suspension of the powers vested by this act
in the courts of the United States, it is for the Legislature to say so.
The question depends on political considerations, on which the leg-
islature is to decide. Until the legislative will be expressed, the
Court can only see its duty and obey the laws."

The remaining authority is that of Judge Story, also an
illustrious name in connection with the Supreme Court of
the United States. In his Commentaries on the Constitu-
tion, (3, sec. 1836.) Judge Story says :

"It is obvious that cases of emergency may arise, which may justify,
nay, even require the temporary suspension of any right to the writ #
But as it has frequently happened in foreign countries, and even in
England, that the writ has, upon various pretexts and occasions,
been suspended, whereby persons apprehended upon suspicion have
suffered a long imprisonment, sometimes from design, and sometimes
because they were forgotten, the right to suspend it is expressly con-
fined to cases of rebellion or invasion, where the public safety may


require it. A very just and wholesome restraint, which cuts down
at a blow a fruitful means of oppression, capable of being abused in
bad times to the worst of purposes. Hitherto no suspension of this
writ has ever been authorized by Congress since the establishment of
the Constitution. It would seem, as the power is given to Congress to
suspend the writ of habeas corpus in cases of rebellion or invasion, that
the right to judge whether the exigency had arisen must exclusively belong
to that body."

In the face of such evidence and authorities, it is very
great hardihood to contend that the clause in the Constitu-
tion authorizing the suspension of the privilege of the writ
of habeas corpus, confers this power on the President. It
seems the plainest thing possible that it confides it exclu-
sively to Congress.

But the present Attorney General, who is the constitu-
tional legal adviser of the President, and must be regarded
as the exponent of his views and claims in this matter, argues
that this power is conferred on the President by the official
oath required of him, by the general charge the Constitution
gives him to see that the laws are faithfully executed, and
by the acts of Congress making it his duty to prevent and
repel invasion and to put down insurrection. And the Sec-
retary of State, in his recent correspondence with the British
Minister touching the arbitrary arrest and imprisonment of
British subjects, boldly renews the Presidential claim of this
power on substantially the same grounds. Attorney-General
Bates says :

" All the other officers are required to swear only ' to support this
Constitution,' while the President must swear ' to preserve, protect
and defend it,' which implies the power to perform what he is in so
solemn a manner to undertake. Then follows the broad, compen-
dious injunction, to 'take care that the laws be faithfully executed.'
This injunction, embracing as it does all the laws, Constitution,
treaties, statutes, is addressed to the President alone, and not to any
other department or officer. This constitutes him in a peculiar man-
ner, and above all other officers, the guardian of the Constitution — its
preserver, protector and defender."


Secretary Seward to Lord Lyons says :

"The President of the United States is, by the Constitution and
laws, invested with the whole executive power of the Government,
and charged with the supreme direction of all municipal or minis-
terial civil agents, as well as of the whole land and naval forces of
the Union; and invested with these ample powers, he is charged by
the Constitution and laws with the absolute duty of suppressing
insurrection as well as preventing and repelling invasion ; and for
these purposes he constitutionally exercises the right of suspending
the writ of habeas corpus, whenever and wheresoever, and in whatso-
ever extent the public safety, endangered by treason or invasion in
arms, in his judgment requires."

Alas, that an official oath which by its peculiar solemnity,
greater than that of any other in the Constitution, indicates
the jealousy and distrust of executive power felt by the framers
of the instrument, should be used to uphold the usurpation it
was designed to guard against ! That a charge of the Con-
stitution framed with cautious limitation of the power of the
President, should be made a plea for grasping unlimited
power ! That acts of Congress which express the national
sense of the designed limitation of the authority of the execu-
tive in the Constitution, and of its deposit of supreme power
with the Legislature, should be held to justify the claim and
exercise of power that over-rides that of the Legislature itself!
Mr. Clay, upon the appearance of Gen. Jackson's famous
Protest, in the Senate expressed unaffected astonishment
that an official oath should be regarded as containing a grant
of power, and declared that such a thiug was never before
heard of. The charge of the President in the Constitution
is expressed with singular clearness and caution. It is not
"broad" and "compendious," but explicit and definitive.
It clothes him with no power to make or judge of laws, or
to carry on the government according to his wisdom or dis-
cretion, but enjoins upon him simply "to take cart that the
laws be faithfully executed." He is not by the Constitution
" charged with the absolute duty of suppressing insurrection
as well as preventing and repelling invasion." There is not


one word of such a power, or a shred of authority for it, in
the Constitution, but it is expressly given to the Legislature;
and in so far as he possesses it, it is by grant of that body.
The Constitution, in Art. I, Sec. viii, says, that "Congress
shall have power to provide for calling forth the militia to
execute the laws of the Union, suppress insurrections, and
repel invasions" — "to provide for the common defense and
general welfare of the United States" — "to declare war" —
"to raise and support armies" — "to provide and maintain a
navy " — " to make rules for the government and regulation
of the land and naval forces" — " to provide for organizing,
arming and disciplining the militia, and for governing such
part of them as may be employed in the service of the United
States." Congress, in order to enable the President effect-
ually to " take care that the laws be faithfully executed,"
has, indeed, in the supreme control which the Constitution
gives it, put the military and naval power of the Government
at his disposal for suppressing insurrection and repelling
invasion ; but then it has in the most explicit and emphatic
way withheld the power over the habeas corpus, to establish
the Presidential claim to which, all this array of his other
powers is made. A bill, drafted probably under the advise-
ment of Mr. Jefferson, for the suspending of the privilege of
the writ, was during his administration and the conspiracy
of Aaron Burr, passed by the Senate, but indignantly rejected
by the House. Neither Mr. Jefferson nor the Congress of
his time, thought the suspension of the privilege of the
habeas corpus was a right ex- officio of the President, but
evidently regarded it as belonging to Congress, without
whose authority it could not be exercised by the President.
And at no subsequent time has Congress conferred this
power on the President. It remains, therefore, where the
Constitution has lodged it — with the National Legislature.
We desire, however, against this claim preferred by the
eminent men in the Cabinet, that the President by his oath
and office is constituted "in a peculiar manner, and above
all other officers, the guardian of the Constitution — its pre-


server, protector and defender" — the custodian of our liber-
ties — to hurl the eloquent and burning words of the great
Webster, in his speech in the Senate against the Protest of
Gen. Jackson. Their elegance and force, the solemn warn-
ing they utter, their singular fitness to the arguments which
are now being used in favor of arbitrary power, and their
pertinence to this whole discussion, will justify the length
of the extract :

" Would the writer of the Protest argue that the oath itself is any
grant of power ; or that because the President is to preserve, protect
and defend the Constitution, he is, therefore, to use what means he
pleases, or any means for such preservation, protection and defense,
except those which the Constitution and laws have specially given
him? Such an argument would be preposterous; but if the oath
be not cited for this preposterous purpose, with what design is it thus
displayed, unless it be to support the idea that the maintenance of
the Constitution and the preservation of the public liberties are
especially confided to the safe discretion, the true moderation, the
paternal guardianship of executive power?

^ ^ >£ >£ y£ ^

" Mr. President, the contest for ages has been to rescue liberty from the
grasp of executive power. Whoever has engaged in her sacred cause,
from the days of the downfall of those great aristocracies which stood
between king and people to the time of our own independence, has
struggled for the accomplishment of that single object. On the long
list of the champions of human freedom, there is not one name
dimmed by the reproach of advocating the extension of executive
authority. On the contrary, the uniform and steady purpose of all
such champions has been to limit and restrain it. To this end all
that could be gained from the imprudence, snatched from the weak-
ness, or wrung from the necessities of crowned heads has been
carefully gathered up, secured, and hoarded as the rich treasures, the
very jewels of liberty. To this end popular and representative right
has kept up its warfare against prerogative with various success ;
sometimes writing the history of a whole age with blood — sometimes
witnessing the martyrdoms of Sydneys and llussells — often baffled
and repulsed, but still gaining on the whole, and holding what it
gained with a grasp that nothing but its own extinction could compel
it to relinquish.


" Through all this history of the contest for liberty, executive power
has been regarded as a lion that must be caged. So far from being
the object of enlightened popular trust — so far from being considered
the natural protection of popular right — it has been dreaded as the
great object of danger.

"Who is he so ignorant of the history of liberty at home and
abroad — who is he from whose bosom all infusion of American spirit
has been so entirely evaporated — as to put into the mouth of the
President the doctrine that the defense of liberty naturally results to
executive power, and is its peculiar duty ? Who is he that is gen-
erous and confiding towards power where it is most dangerous, and
jealous only of those who can restrain it? Who is he that, reversing
the order of State and upheaving the base, would poise the pyramid
of the political system upon its apex? Who is he that declares to
us, through the President's lips, that the security for freedom rests
in Executive authority? Who is he that belies the blood and libels
the fame of his ancestry by declaring that they, with solemnity of
form and force of manner, have invoked the executive power to come
to the protection of liberty ? Who is he that thus charges them with
the insanity or recklessness of thus putting the lamb beneath the
lion's paw? No, sir — no, sir. Our security is in our watchfulness of
executive power. It was the constitution of this department which
was infinitely the most difficult part in the great work of creating
our government. To give the executive such power as should make
it useful, and yet not dangerous — efficient, independent, strong, and
yet prevent it from sweeping away everything by its military and
civil power, by the influence of patronage and favor — this, indeed,
was difficult. They who had the work to do saw this difficulty, and
we see it. If we would maintain our system, we shall act wisely by
preserving every restraint, every guard the Constitution has provided.
When we and those who come after have done all that we can do,
and all that they can do, it will be well for us and for them if the
executive, by the power of patronage and party, shall not prove an
over-match for all other branches of the Government.

" I will not acquiesce in the reversal of all just ideas of govern-
ment. I will not degrade the character of popular representation. I
will not blindly confide where all experience admonishes to be jealous.
I will not trust executive poicer, vested in a single magistrate, to keep the
vigils of liberty.


" Encroachment must be resisted at every step. "Whether the
consequences be prejudicial or not, if there be an illegal exercise of
power, it must be resisted in the proper manner. We are not to
wait till great mischief come — till the Government is overthrown,
or liberty itself put in extreme jeopardy, "We should not be
worthy sons of our fathers were we so to regard questions affecting

If the majestic form of the eloquent advocate of constitu-
tional liberty were raised from the dust, where it sleeps, to
behold the gigantic strides executive power is now making,
what would be the inspiration of those lips ? If then his
words so glowed, how would they now flame !

Chief Justice Taney seems to hold that even Congress
cannot give to the President, in any circumstances, discre-
tionary power over the writ of habeas corpus. That body,
however, may, clearly, suspend the privilege of the writ, but
only in times of rebellion or invasion — and then only when
the public safety may require it. The framers of the Con-
stitution thought it safer to entrust this power to a body
consisting of a number of men chosen from all parts of the
nation, than to one man. If Congress abuse this power — if
it be exercised arbitrarily and tyranically, for the oppression
of citizens on account of their political opinions, or for other
causes not within the provisions of the Constitution — the
remedy is easier from the shorter term of office of Repre-
sentatives. If Congress use this power to prevent the exer-
cise of the right of free suffrage, to perpetuate itself, or for
effecting any other great change in the Government, which
must be immediately arrested to prevent the liberties of the
people being put permanently beyond their control — then
there is left only the last resort of an oppressed people,
which is revolution.

The conclusion of all we have said, and of all we have
made others to speak in these pages, in this part of our dis-
cussion, is that the power to suspend the privilege of the
writ of habeas corpus has been most jealously guarded by
the Constitution and confided solely to Congress ; that its


exercise by the President is a pure and gross usurpation ;
that it is a usurpation of a nature that tends to the destruc-
tion of all our liberties ; and, finally, that if the nation has
acquiesced in it, we live no longer in a free republic, but
under a despotism.

We have now to notice yet greater usurpations by the
President and the military power he commands. The sus-
pension of the privilege of the habeas corpus, when it is
legally accomplished, merely leaves under arrest and without
a remedy for the time being, the citizen seized to prevent
his aiding the rebellion or invasion ; but leaves him the right
when the exigency shall have passed, to a fair trial by a jury
of his peers; and when abused, only subjects him to such
tyranny as may be effected through the unjust confinement
of his person. Martial law — which is nothing else than the
enforcement of the arbitrary will of the commander-in-
chief, or of any subordinate to whom he may see fit to
delegate absolute power in a particular district — destroys
the legal guarantees of all rights, and exposes them all to
invasion. Safety in the estate, the person, personal liberty,
and even life itself, is made dependent upon the mere
pleasure of the dictator. This enormous power has been
exercised by the military authorities under the President.
Martial law has been established in populous cities and over
extensive districts of country, in States which have not been
proclaimed to be in insurrection, and in which the Federal
Courts had continued loyal and uninterrupted in their sit-
tings. Arrests by military authority, and without civil
process, have been common all over the loyal part of the
country. Freedom of speech and of the press have been
destroyed. The people have not been allowed to say or
read what they pleased. Newspapers have been suppressed,
forcibly by the military authorities, or not less effectually by
the withdrawal of postal facilities. A servile press, lettres
de cachet, and the Bastile, in place of free discussion, have
been the instruments for controlling public sentiment.
Large sums of money have been levied off' of citizens


remaining at their homes, designated for their political opin-
ions. The police of one of our largest cities, occupied by
the Federal troops, have been dismissed, and others appointed
in their place. The members elect of the Legislature, regu-
larly elected by the people, of a State remaining in the
Union, have been seized before qualifying for their legisla-
tive duties, and incarcerated for months. A member of the
Missouri State Convention, in the city of St. Louis, in the
course of the debates of that body, made a speech against
the military despotism under the name of martial law, which
had been established in that city and in that State, though
avowing himself against the secession of the State ; the next
day he was lodged in the barracks, the Bastile of the place.
A judge issuing the writ of habeas corpus, and attorneys pro-
fessionally making application for it, have been imprisoned.
And if the reports of newspapers can be credited, citizens
not taken in arms, have suffered capital punishment without
judge or jury, upon a charge (of destroying a railroad) cog-
nizable and easily established or disproved in the courts.
All rights and all authority — personal, municipal, judicial
and state — have alike come under the crushing tread of the
military power.

What we have to say upon the subject of martial law,
may be compressed into a few points.

1. It is complete and utter lawlessness. It is the over-
throw of all law, and of a class with mobocracy. There is,
therefore, no authority for it, since there is no authority
above and beyond the Constitution and the laws. It is
something which any man has as much right to proclaim as
another — which is no right at all.

2. It is a form of lawlessness which, besides being imme-
diately an invasion of all rights, is disruptive of society in
the permanent demoralization it tends to produce. It breaks
down popular reverence for law. The people cannot be
expected to venerate it when their rulers set it at defiance
whenever it suits their convenience or pleasure. One such
scene of violence as has been witnessed in our streets, of



resistance to the laws by the arms of the Government — of
the presentation of a row of bayonets to the civil officer
bearing the great writ of habeas corpus, for the protection of
citizens seized in their homes by the military power — is
more demoralizing than a dozen mobs.

3. It has not been known in Great Britain for a period of
nearly two centuries. The courts have decided that it is
"contrary to the Constitution," and has not "any place
whatever within the realm of Britain."

4. There are but two instances of the proclamation of
martial law in the history of our own country, previous to
the present civil war. Gen. Washington passed through the
long struggle of the Revolution, without finding any neces-
sity for the assumption of this extraordinary power. The
first of the two cases alluded to, was the establishment of
martial law in New Orleans, by Gen. Jackson, in 1815,
during the war with Great Britain ; "which was first con-
demned as illegal and void by an intelligent court martial,
then by the District Court of the United States, and after-
wards by the Appellate Court of Louisiana." The act of
Congress refunding to Gen. Jackson the amount of the fine
incurred by him for^that offense against the laws, whatever
might have been the design in its passage, could not affect
those decisions. But that act, notwithstanding Gen. Jack-
son previously expressly declared he would not accept the
money unless it were understood to be an exoneration of
himself, cannot fairly be regarded as anything else than a
tribute to a popular favorite, or a generous extenuation of
an offense of one who had rendered eminent service to his
country. It was not the judgment of Congress, or of the
nation, upon the question in relation to martial law. And
the act did not pass without the strenuous opposition and
eloquent warnings of members of the House and Senators,
who, now that they are dead, are regarded unanimously as
among the greatest and wisest statesmen their country has
ever produced ; who were not unwilling to unite in any suit-
able tribute to great public service, but saw with appre-


hension the bearing of the act upon this vast question, and
the destructive precedent it would seem to establish.;

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Online LibraryRobert L BreckThe habeas corpus, and martial law → online text (page 3 of 4)