Year: 1861

| ( Before the Chief Justice Of
| En- pdrLe the Supreme Court of the
JoHS MERRMAS. United States, at Chambers
/ The application in this case for writ Of habeGs
corpus is made to under the 18th section of the
Judiciary act of 1883, which renders effeetual for
the citizens the constitutional privilege of the writ
of habeas cops. That act gives the courts of the
| United States as well as TO each Justice OF the
Supreme Court and to every District Judge, power
to grant writs of hnbeGs corpus for the purpose OF
| an inquiry into the cause of commitment.


As the case comes before me. therefore, under
stand that the President rot only claims the right
to suspend the writ of hGbedS corpus himself, at his
discretion, but delegate that discretionary power
to military officer, and to leave 1t to him to deter
mine whether he will or will not obey Judicial pIo
| cess that may be served upon him.


No official notice has been given to the courts OF
justice, to the public, by proclamation or other
wise, that the President claimed this power, and
had exercised it in the manner stated in the return
And certainly listened to it, with some surprise
for had supposed it to be one of those points OF
constitutional law upon which there was no differ
ence of opinion, and that it was admitted on all
hands that the privilege of the writ could not be
suspended, except by act of Congress.


When the conspiracy OF which Aaron Burr was
| the head became so formidable, and was so exten
sively ramifed as to Justify, in Mr.. Jeersons opin
ion, the suspension of the writ, he claimed on his
part no power to suspend it. but communicated his
opinion to Congress, with all the proof in hiE pos
| session, in order that Congress might exercise
| its discreet upon the subject, and determine
whether the public safety required It. And in the
debate which took place upon the SUBJECT no one
suggested that Mr. Jefferson might exercise the pow
er himself if in his opinisn, the public safety de-
| manded it.


| Having therefore, regarded the questian ss too
plain and too well settled to be open TO dispute il
! the commanding officer had stated that upon his
own responsibility, and the exercise of his own
| ha Ohadie f,,f bp WI
should have cOntented myself with referring to the
clause in the Constitution, and to the construction
t received from every jurist and statesman Of that
| day. when the case Of Burr was before them. But
being thus officially notified that the privilege OF the
writ has been suspended under the orders and by
the authority Of the President and believing as do
| that the President has exercised power which be
does not possess under the Constitution, proper
respect for the high Office he fills requires me tC
| state plainly and fully the grounds of my opinion
in order to show that have not Ventured to ques
ton the legality of his without careful and de
liberate examination of the whole subject.


The clanse in the Constitution which authorize:
the suspension of the privilege OF the writ OF hoed
corpus is in the 9th section of the first article.


This article Is devoted to the legislative depart
ment of the United States and has not the slightest
| reference to the Executive Department lt begins
by providing "that all legislative powers therein
granted shall be vested in Congress of the United
States, which shall consist of Senate and House
| of Representatives" And, after prescribing the
manner in which these two branches of the legisla
tive department shall be chosen it proceeds to emu
merate specifically the legislative powers which il
| thereby grants, and legislative powers which il
expressly prohibits; and, at the conclusion of this
| specification clause is inserted giving Congress
1.-The power to make all laws which may be necesa
ry andiproper TO carry into execution the foregoing
powers and all other powers vested by this CGnst
tuition in the Government of the United States, OF
| in any department or office thereof


| Tho DOwer of legislation granted by this latter
clause IS by its words carefully confined to the spe
ciic objects before enumerated. But, as this limit
| alton was unavoidably somewhat indefinite, It was
deemed necessary to guard more e1ectuany certain
great cardinal principles essential TO the liberty OF
the citizen and to the rights and equality Of the
States, by denying to Congress, in express terms
! any power of legislatng over them. 1t was appre
hended it seems that such legislation might be at
tempted under the pretext that was necessary and
proper to carry into execution the powers granted
and it was determined that there should be no room
| to doubt where rights of such vital Importance
ere concerned, and accordingly this clause ls I'M
mediately followed by an enumeration of certain
subjects, to which the powers OF legislation shall
| rot extend; AID the great Importance which the
trainers of the Constitution attached to the privf
lege Of the writ of hdbeds corpus to protect the lib
erty of the citizen is proved by the fact that It's
suspension, except in cases oiinvasion and rebellion
is first in the list of prohibited powers and even IN
these cases the power is denied, and its exercise
prohibited, unless the public safety shall require it.


1t is true that in the mentioned, Congress IS
of necessity the judge of whether the public safety
does does not require 1t and their Judgment IS
conclusive But the Introduction Of these words ls


standing admonition to the legislative body Of the
danger of suspending it. and of the extreme caution
they should exercise before they gave the Govern
ment of the United States such power over the lib
erty of a citizen.


Ii is the second article of the Constitution that
provides for the organization Of the Executive De
| partment and euumerates the powers conferred on
| It. and prescribes Its duties And If the high power
over the liberty of the citizens now claimed was IN
tended to be conferred on the President. 1t would
undoubtedly be found plain words in this article
But there is not word in it that can furnish the
slightest ground to justify the exercise of the power


The article begins by declaring that the Executive
mower shall be vested in President of the United
States of America to hold his Office during the term
of four years and then proceeds to prescribe the
mode of election, and to specify IN precise and palH
words the power delegated to him and the duties
imoosed upon him. And the short term for which
he is elected and the narrow limits to which his
power is confined, show the jealousy and aPprehen-
sion of future danger which the trainers OF the Con
stituon felt in relation TO that department OF Coy
| ernmebt and how carefully they withheld from i
many of the powers belonging to the Executive
branch of the English Government, which were con
sidered as dangerous to the liberty of the subject
and conferred land that in clear and specific terms
those powers only which were deemed essentlal 10





ment.


He ia elected as have already said for the briei
term of four years, and is made personally respon
sible by impeachment for malfeasance In office he
is from necessity and the nature OF his duties the
commander in chief Of the army and navy. and Of
the militia when called into actual service But nc
appropriation for the support of the army can bt
made by Congress for longer period than two
years, so that it is within the power OF the sue
| ceeding House of Representatives to withhold the
appropriation for its support, and thus dsband 1t
if in their Judgment the President used, or designed
to use it tor improper purposes. And although the
militia when in actual service, are under his com
mand, vet the appointment of officers is reserved
to the States SIS a security against the use OF mill
tary power for purposes dangerous to the Liberties
of the people or the rights of the States.


So too. his mowers in relation to the civil duties
and authority necessarily conferred on him are care
fully restricted as well as those belonging to hi
military character. He cannot appoint the ordina
rv officers of Government, nor make treaty Will
foreign nation or Indian tribe, without the advic


and consent of the Senate and cannot appoint eyel
inferior officers unless he is authorized by act
, Congress to do so. He is not empowered to arres
anv one charged with an offence against the Unite


States and whom he msy, from the evidence befor
him believe TO be guilty nor can he authorize an


officer, civil or military, to exercise this power, 70
the fifth article of the amendments to the Constu


tion expressly provides that no person q shall b
| depriyed of life, liberty CT property without du


process of law'-that is, judicial process.


: And even, if the privilege of the writ of habea
/! corpus was suspended by act of Congress. and


party not subject to the rules and articles OF wa


was afterwards arrested and imprisoned Dy reguia


iudicial process he could not be detained IN Prlso
or brought to trial before military tribunal 10
the article in the amendments to the Consntnuol
immediately following the one above referred To-


that is the sixth article-proyides that IN sl crln