BY DAVID OVER. T'JE WRIT OF HABEAS CORPUS, | Opinion of tlie Attorney General on tlue Suspension of the Writ of habeas Corpus. ATTORNEY GENERAL'S OFFICE, July 5. To THE PRESIDENT — Sir: You have re quired my opinion in writing upon the follow ing questions.— I. Io the present time of a c ■ eat and dan gerous insurrection, has the Pre- lent tho j discretionary power to cause to be arrested! and held in custody persons k: u ; have! criminal intercourse with the insi.:,- . or persons against whom there is probable ise I for suspicion of such criminal complicity! 11. In such oases of arrest is the President j justified in lefusing to obey a writ of habeas corpus issued by a court or a judge, requiring 1 him or his agent to produce the body of the \ prisoner, and show the cause of his capture and detention, to bo adjudged and disposed of by such court or judge? To make my answer to these questions at ouce consistent and plaio, I find it convenient to advert to the great priuoiple of government as reoognized end acted upon in most, if not all, tbe oountries in Europe, and to mark the ! differcnoe between tbat principle, and the great principle which lies at the bottom of our na tional government. Most European writers upon government assume, expressly or by implication, that every national government is, and must be, the full i expression aud representation of the nation I whioh it governs, (aimed with all its powers ; and able to assert all its rights. In England, tbe form of whose government more noarlv ap proximates onr own, and where tho right", iu terests and powers of tbe people are most res- ! pected and cared for thau in most of the na- j tious of the European Continent, it has grown j into an axiom thai "the Parliament is ouinipo- j teut," that is, that it can do anything that is possitde to be done by legislation or by judg- ] uiect. For all tbe ends of government the j Parliament is the nation. Moreover, in Eu rope generally, the sovereignty is vested via- j iblyin some designated man or set of men, so that the subject people ean see their sovereign as well as feel tbe workings of his power. — But in this couotry it has been carefully pro vided oMieiwiso. In the formation of our na tional government our fathers were surround ed with peculiar difficulties, arising out of tbeir novel, I may say unexampled, condition. In resolving to break the tics which had bound them to tbe British Empire, thir coats plaints were leveled chiefly at the King, not tbe parliament nor the people. Thoy seem to have been actuated by a special dread of tho unity of power, and hence in framing tbe Uou stisution, they preferred to tako the risk of leaving somo undone, for lack of power in the agent, rather than arm any governmental offi cer with such great powers for evil as are im plied in the dictatorial charge to "see that uo damage comes to tbe commonwealth." Hence, keeping the sovereignty always out ot' sight, they adopted the plan of "checks and balances," forming seperate departments of government, and giving each department sep crate and limited powers. These departments are coordinato and coequal, that is, neither beiog sovereign, each is independent in its sphere, and not subordinate to (he others, either of them or both of them together. We have these coordinate departments.— Now, if we allow one of the three to determ ine the extent of its own powers, and also the extent of the powers of tbe other two, that one oan control the whole government, and has in fact achieved the sovereignty. Wo ought uot to say that our system is per fect, for its defects (perhaps inevitable in all human things) aro obvious. Our fathers, hav ing divided the Government into coordinate departments, did not even try (and if they had tried, would probably hive failed) to create an arbiter among thorn to adjudge their conflicts and keep them within their respective bouuds. Tbey were left, by design, I suppose, each in* dependent and free, (p act out its own granted powers, without any ordainod legal superior possessing the power to revise ! reverse its aotion. And this with the hope 'hat be three departments, mutually coequal and independent ;yould keep each other within t: an proper spheres by their mutual antagonism—that is, by the system of checks and balances, to wkicfi our fathers were driven at tho beginning by their fear of the unity of power. Io this view of the subject, it is quite poe* siblo for tho 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 irrevo* cable, binding upon the parties to each case; and that, for the simple reason that tbe Dee partments are coordinate, and there is no or* dained legal superior, with power to revise and jeverse their decisions. Tc say that the Department* of ourjGovern* rnent are coordinate, is to say that the judg ment of one of them is not binding upon the ether two, as to the arguments and priooiples involved in the judgment. It binds only the parties to the case decided. .But if admitting that the departments of Government are coor* dinate, it be still contended that the principles adopted by Que department, in deciding a caeo properly before it, are binding upoo another department, that obiigatiou must of necessity he reciprocal—that is. if the President be bound by the principles laid down by the Juv diciary, 60 also is the Jadiciary bound by the principles laid down by the President. Aud thus we shall have a theory of constitutional government flatly contradicting itself. De partments Qordinate and coequal, and yet re* oiprocally subordinate to each other. That cannot bo. The several departments, though far from sovereign, are free and independent A Weekly Paper, Devoted to Literature, Politics, the Arts, Sciences, Agriculture, &c., Ac—Terms: One Dollar and Fifty Cents in Advance. in the exercise of the limited powers graDted 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 arc expressly withheld. The nation certainly is coequal with all other na tions, and has equal powers, but it Las not cho sen to delegaU all its powers to this Govern ment, iu any or all of its departments. The Government, as a whole, is limited, and limited in all its departments. It is tbe espe' eial function of the Judiciary to hear and de termine oases, not to "establish principles," cor questions, so as to conclude aDy person nat the parties and privies to the cases adjudged. Its powers nre specially granted and defined by the Constitution, article 3, sec tion 2. "The judicial power shall extend to all oases in law and equity arising under this Constitu tion, the laws of the Uuited States, and treaties made and which shall be made, under their au thority; to all oases affeoting ambassadors oth er m'uisters, and consuls, to all cases of ad miralty and maiitime jurisdiction; to contro versies of which She United States shall be a party; to controversies between two or more States; between States and citizens of other States, betweeu citizens of different States; between citizens of the same State cluiming 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 distribu tive justice among individual parties but pow erless to impose rules of action and of judg ment upon the other deprt--menu. Indeed, it is not itself bound by its wu decisions, for it can, and often does, overrule and disregard them, as iu common bouesty it ought to dc, whenever it fiuds, by its after and better lights that iti former judgments werejwroog. Of all the departments of the Governor iii, the President is moat active, and the most constant in notion. He is called "the Exo* utive;" and so iu fact he is, and much more also, for the Constitution has imposed upon him many important duties,and granted to him great powers which are in tbeir na'ure not executive —such as the veto power, the power to scud cud receive embassadors, tho power to make treaties, and the power to appoint iffi cers This last is no more an executive pow er wbeu used by the President than it is when exercised by either lioose of Congress, by the courts of justice, or by the people at large. The President is a depariment of the Gov ernment and although the only department which couuste of a single man, be is charged with a greater range and variety of powers and duties than any other department, lie is a civil magistrate, not a military chief; aud in this regard wo see a striking proof of the gen erality of the sentiment prevailing iu this country at the time of the formation of our Government, to the effect that the military ought to be bold in strict subordination to the civil power. For tbe Constitution, while it grants to Congress the unrestricted power to declare war to raise and support armies, and to provide aud maintain a navy, at the sanid time guards carefully against tbe abuse of that power, by withholding from Congress and from the army itself the authority to appoint the chief commaudcr of a force so potent for good or for evil to the State. The Constitution provides that "tbe President shall be comman der in ehief of the army and navy of the United States, and of the militia of the sever al States when called into the actual service of tbo United Stales." And why is this!—— Surely not beuauee (he President is supposed to be, or commonly is, in fact, a military man, a man skilled in tbe art of war, and qualified to marshal a host in the field of batt e. No, ilia for quite a different reason; it is, that whatever skillfull soldier may lead our armies to victory against a foreign foe, or may quell a domestic iusurraotiou, however high he tnay raise his professional ienown, and whalover martial glory ho may wiu, still he is subject to tbe orders of tbo civil magistrate, and be and his army are always ''subordinate to the oivi power." And beueo it follows that whenever the President (the eifii magistrate) in the discharge of his c r stilutmiial duty to "take care tbat the laws La faithfully executed," has occasion to use the army to aid him in the performance of that duty, he docs not thereby lose his civ il character and become a soldter, subject to military law and liable to be tried by a oourt martial, any more than does a civil court lose its legal and pacific nature, and beoome mili taiy and belligerent by calling out the power of the country to enforoe 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 sub jects, and their legal power and right to do so is unquestionable. The right of the courts to call out the whole power of the county to en force their judgments is as old as the common law; and tho right of the Preaident to use force in the performance of his legal duties is not only inherent in his office but has beou frequently recognized and aided by Congress. One striking example of this is the aot of Con gress of Marob 3, 1807, (2 Stat., 445) which empowered the President, without the inter vention of any court, to use the Marshal, and if he be insufficient, to uso tho army, summa rily to expel intruders and squatters upon the public lands. And that power has .been fre quently exercised, without as far as 1 know, a question of legality, To call, as is some times done, tho Judiciary the civil power, and the President the military power, seems to me at once a mistake of faot and an abuse of language. BEDFORD. PA., FRIDAY, AUG. 9. 1861. While the judiciary and tbo President, as departments of the general government, are coordinate, equal in indignity sod power, and equally trusted by tbe law, iu their respective spheres, there is, nevertheless, a marked di versity ia the character of their functions and their modes of action. The Judiciary is, for the most part, passive. It rarely, if ever, takes tbe initiative; it seldom or never begins an operation. Its great function is judgment, and, in the exercise of that function, it is Con fined almost exclusively to oases not selected by itself, but made and submitted by others. The President, on the oootrary, by the very nature of bis office, is active; be must often take the initiative; ho must begin operations. His great function is execution, for he is re quired by the constitution, (and he is the only department that is so required.) to "take care that the laws laws) be faithfally exe cuted;" aud i;i the exercise of tbat function, his duties aro co-exteusiva 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 bis constitu tional duty, to take oaso that tho laws be faith fully executed. 1 say it is a small part of his duty, because for every instanoo in which tbe President executes the Judgment of a court, there are a hundred instances in which he exe cutes the law, without the intervention of tho Judiciary, and without referiing 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 ot action, aud the characteristic diver sity of the subjects upou which tbey operate: and all this as a foundation for the answers which 1 will now proceed to give to tho par ticular questions propounded to me. As to the first question, lam clearly of opinion that, iu a time like the preseut, when tho very existence of tbe nation is assailed by a great aud dangerous insurrection, the Presi dent has the lawful discretionary power to ar rest and hold in custody persons known to have criminal intercourse with the insurgents, or persons against whom there is probable i cause of suspicion of such criminal complicity. ' And I think this position can be maintained,' in view of tho principles already laid down, ' by a very plain argument. The Constitution requires the President, be fore be enters upon tho execution of his office, to take an oath that ho "will f.ithfnl y <x - cute tho office, of PH'M KUI of 'he United Stares, and will, to tb-j bot of his utility, preserve, protect, an 1 defend the Constitution of the United Sfateo." The duties ot tho offioo comprehend ell the executive povnrof the nation, which is ex pressly vested in the President by 'ho Consti tution, article 2, section 1, and also all the powers which are specially delegated to the President, aud yet are not, in their nature, ex ecutive powers. For example, the veto power, the treaty making power, the appointing pow ■r, the pardoning power. These belong to that oia:-3 whioh in England are called pre rogative powers, inherent iu the Crowu. And yet the framers of our Constitution thought proper to preserve them and to vest them io the President, as necessary to the good eminent of the country. Thp executive pow ers arc granted generally and without specifi cation, the powers not executive are granted specially, and for purposes obvious in tbe con text of the Constitution. Aud all these arc embraced within tho duties of the President, aud are clearly within that clause of his oath which requires him io "faithfully execute the office of President." The lust clause of tbe oath is peculiar to the President. All the other officers of Govern ment are required to swear only "to support this Constitution;" while the Pnesident must swear to "preserve, protect, and det'end" it, which implies the power to perform whet he is required in so solemn a manner to undertake. Ana then follows the broad and compendious injunction to "take care tbat the iaws be faith fully executed." And this injunction, era bracing as it does all tbo laws—Constitution, treaties, statutes— is addressed to tbe Presi dent alone, and uot to uuy other department or offi e of tbo Government. And this con* slituKs him, io a peculiar manner,and above all other officers, the guardian of tho Consti tution —its preserver, proteotor, and defend er. It is the plain duty of the President (and bis peculiar duty, above aud beyond the other departments of the Government) to preserve the Constitution and execute the laws all over tbe nation; and it is plainly impossible for him to perform this duty without putting down rebellion, insurrection, and all unlawful com binations to resist the General Government. Tbe duty to suppress the insurrection being obvious and imperative, the two acts of Con gress, of 1795 and 1807, come to bis aid, aud furnish the physical force w'uioh he needs, to suppress the indirection and execute the laws. Thus® ttvo authorize the President to employ fur tbat purpose the militia, the army and the navy. The argument may be briefly stated thus. It is the President's honnden duty to put down the insurrection, as (iu the language of the act of 1795) the "combinations are too powerful to be suppressed by the ordiuary course of judicial proceedings or by the powers vested in the marshals." ~ And this duty is imposed upon the President for tho very roason that tho courts and the marshals arc too perform it. The mauuer in which he shall perform that duty is no,t prescribed by any law, but the moans of performing it are given, in the plain laogaago of tho statutes, and they are all means of foroe—the militia, the army and tho navy. T'he end the suppression of the insurrection, is required of him, the means to suppress it are lawfully in his hands, but tbe manner in whioh be shall use them is not pre scribed, and could not be prescribed, without a foreknowledge of all the future changes and contingencies of the insurrection. He is therefore, necessarily, thrown upon bis discretion, as to the manner in which be will use his means to meet the varying exigencies as they arise. If the insurgents assail tbe nation with an army, be may find it beat to meet them with ait army, and suppress the insurrection in the field of battle. If they seek to jirul- ng the rebellion and gather strength by Spiercourse with foreign nations, he may choose to guard the coast and close the ports with a nuvy, as one of the most efficient means to suppress the insurrection. And if they employ spies and emissaries to gather information; to forward secret supplies, and to excite new in surrections in sid of the original rebellion, he may Hid it both prudent arid btima- to arrest and im prison them. And this may be done, either for the purpose of bringing litem to trial and condign pun ishment for their crimes, or they may be held in custody for tho milder end of rendering them pow erless for mischief, until the exigency is past. In such a state of things the President must, of necessity, be the sole judge, both of the exigency which requires him to act and of the manner in which it is most prud ut for him fo employ the powers intrusted to him, to enable him to discharge his constitutional unci legal duty— that is, to sup press the insurrection and execute the laws. And this discretionary power of the President is fully admitted by the Supreme Court, in the case of Martin vs.' Mott. (12 Wheaion'a Reports page 19; 7 Curtis, 10.) This is a great power in the hands of the Chi f Magistrate ; and because it is great, and is capable of beiDg perverted to evil ends, its existence has been doubted or denied. It is said to be dangerous in the hands of an ambitious and wicked President, because he may use it for the purpose of oppression and tyranny. Yes, certainly it is dangerous—all power is dangerous—and for the all-pervading reason that all power is liable to abuse; all the re cipients of humau power are men, not absolutely virtuous and wise. Still it is a power necessity to the peace and safety of tbecountiy, and undeniably belongs to tbe Groverument, and therefore must be exercised by some department or officer thereof. Why should this power be denied to the President, ou the grouud of its liability to abuse, aud not denied to the other departments on the same grouud! Are they more exempt than ho is from the frailties and vicos of hu manity! Or are they more trusted by tho law thau he is trusted, in their several spheres of uotion? If it be said that a President may be ambitious aud unscrupulous, it may be said with equal truth that a Legislature may be fac tious and unprincipled, and a Court may be venal and corrupt. Bit these are crimes! never <8 be presumed, e\on against a private) man, and much less *g*iu.n -auy high and high- ; ly trusted public ft nei-n ry. Tbey are crimes however, recognized as such, and made pua ishible by the Constitution; and whoever is guiity of them, whether a President, a Senator, or a Judge, is liable to impeachment and con demnation. As to the second question, that the Presi dent has tbe legal discretionary power to itrreet au d imprison persons who aro guilty of hold 'ug criminal intercourse with men eogaged in a great and daDgerr.us insurrection, or persons suspected with "'probable cause." of such criminal complicity, it might seem unnecessary to go iato any prolonged argument to prove tLst, in such a case tbe President is fully jus tified in refusing to obey a writ of habeas cor pus issued by a court or judge, commanding him to produce the body of his prisoner, and state when he took him, und by what authority, and for what cause he detains him iu custody and then yield hiuii-elt to judgment, "to do, submit to, and receive wh ii-oever the judge or c< u t, awarding the wt .t, snail consider in that behalf." If it be true, its 1 have assumed, tbat (lit President and judiciary are coordinate Depart- j meats of Government, and the one not subject to the other, I do not understand low it can bo legally possible fur a judge to issue a com mand to the Preitident to come before biuu ad subjicienaum —that is, to submit implicitly to bis judgement—and, in case of disobedience, treat him as a criminal, in contempt of a su perior authority, aud punish him as for a mis demeanor, by fioc and imprisonment. It is no answer to sometimes beu said, that although the 'writ of habeas corpus can not be issued and enforced against any of his subordinates; for that abandons the principle assumed, of giviDg relief in "all cases" of imprisonment, by color of autbotity of the United States, and attempts to take an untena ble distinction betweeu the person of the President and hi? office and legal power. The law takes no suoh distinction, for it is no res Spector of persons. The President, in the ar rest and imprisonment of meu, must, almost always act by subordinate agents; aud yet the thing done is no less his act than if done by his own hand. But it is possible for tho Presi dent to be in the actual custody or a prisoner, taken in civil war, or arrested on suspicion of being 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 subject matter is political, and not judicial- Tho insurrection is purely political. Its object is to destroy the political government of this nation, and establish an other political government, upon its ruins. And the president as the chief civil magiss trate of the nation, and the most active depart ment of the Goverment, is eminently and exclusively political in all his prinoipal func tions. As the pojitcal chief of tho nation, the Constitution charges him with its) prcserva* tion, protection and defense, and requires him to take care thai the laws he faithfully execu ted. And in that character, and by the aid of tho aoU of Congress of 1795 and 1807, he wages open war against armed rebellion, and arrests und holes in safe custody those whom, in tho exercise cf bis political discretion, he believes to be friends of, and accomplices in, the armed insurrection, whiub it is his eapeoial political duty to suppress. He has no judicial powers. And the Judiciary Department has DO politioal powers, and claims none, and there fore (as well as for other reasons assigned) no court or judge can take cognizance of tbe j political aots of the President, or undertake to revise and reverse his politioal decision. The jurisdiction exercised under tbe writ of habeas corpus is in tbe matter of au appeal (4 Cr., 75), for a* far as concerns the right of tbe prisoner, tho whole object of tbe process is to re-examine and reverse or affirm the acts of the person who imprisoned him. And I think it will hardly be seiiuusly 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 io a case purely political. There is but ODe sentence in all the L'oos i tutioo which m c ntions the writ of habeas cor pus—art. 1, sec. 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, tho public safety may require it." Very learned persous have differed widely about the meaning of this short sentence, and 1 am by no meaus corjfidmt that I fully un derstand it myself. The sententious language of the Constitution, iu this particular, must, 1 suppose, be interpreted with reference to the origin of our people, their historical relations to the mother country, and their inchoate po litical condition at the moment when our Con* utitution was formed. At that time the Uai nited States, as a nation, had no common luw of its own, aud statutory provision lor the writ of habeas corpus. Still, the people, Eu glish by decent, even while in open rebellion against tbe English crown, claimed a sort of h;s oric J right to the forms of English law and the guaranties of F.nglish freedom. They knew that the English Guvernmen t Lad more than once, assumed tbe tho pnwcr to imprison whom it would, and buld them, for au indefi nite tine, beyond the reach of judicial exami nation; aud thoy desired, no doubt, to iu:er pose a guard against the like abuses in this country. And hence the olause of the Con stitution now under consideration. But we must try to eoustrue the words, vague and iudeterminate as they are, ns we find them. "Tbe pn. ;ij;_-e of the writ of habeas corpus shall not be -i,ispeuded."ic. Docs that mean that the writ usetf shall uot be issued, or, that being issued, tbe party shall derive no benefit fr >rn it! Suspended—does tbat mean deiayod! bung up for a time, or altogether denied, Tbe wia of habeas corpus— which wru* la England there were many writs called by that name, and used by the Courts for tho more convenient exercise of t;icir vaiious powers: and i ur own Courts row, l y acts of Congress —the Judiciary act of 1789, tec. 11, and the act of*. March 2, 1833, sec. 7—have. 1 believe, equivalent powers. It has been decided by the Supreme Court, and I doubt not correctly—see Boilman Swart* wool's case (4 Cr. 93) —that "for the meaning of the term habeas corpu, resort must be had to the oommou law, but the pow r to awuJ the writ, by any of the Oouitsof the United States must be given by writteu law." And the narno high Court—judging, DJ doubt, by the history of our people and the ci-cuuistan • ces of the times— has also decided that the writ of habeas corpus mentioned iu the Con stitution is the great writ ad subjiciendum. That writ, in its nature, action, and objects, is tersley and accurately described by Sir William Hluckttone. I adopt his language, ts found in his Commentarus, Hook 3, p. 131: "But xbc great and efficacious writ, in all manner of illegal oomrn ot, is that of habeas corpus ad subjiciendum, directed to the per sou detaining another and eoaimaadiiig him to produce the body of the prisoner, with the day and cause of lv 9 caption and detention, ad faciendum subjiciendum it recipiendum, to do, submit to, and receive whatsoever the Judge or Court awarding such writ shall eonsider iu that behalf. This is a high prerogative writ and therefore by the common law, issuing out of the Court of Ivng's Bench, uot only in term time, but also duiiug the vacation, by a fiat from the Chief-Justice or any other of the Judges, and running into all parts of the King's dominions; for the King is at all times eutitled to have an aoeount why the | liberty of any of his subjects is restrained, | wherever tbat restraint may Le inflicted." Such is the writ of habeas corpus, of which the Constitution declares that the privelege | thereof shall not be suspended, except when, 'in eases of rebellion or invasion the publio J safety may require it. But the Constitution j is silent as to who may suspend it when the ; contingency happens. lam aware that it has | been deolared by the Supreme Court, that "if, at any time, the publio safety should require the suspension of the powers vested by this act (meaning the judiciary act of 1786, sec tiou 14) in tho courts of the United States, it is for the Legislature to say so. Tbat ques tion depends upon political considerations, on whioh the Legislature is to decide.'' Upon this, 1 remark only, that the Constitution is older than the judioiary act, and yet it speaks of the privelege of the writ of habeas corpus as a thing in existenoe; it is in general terms, and does not speak with particular reference to powers which might or might not be granted by a future aot of Congress. Bosides, L take it for certain that in the oemmon eourse of legislation, Congress has power, at any tiuis, (o repeal the Judioiary aot of 1789 and the act of 1833 (which grants to the couits and to tho judges the power to issue the writs) without waiting for a rebellion or invasion, and a consequent publio 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 wiit, but of suspending the powers vested in the court by the aet. The power to issue a writ oan hardly be ealled a privilege; yet the right of an individual to invoke tb~ VOL. 34, NO. 32. his government in that form ma; well be des ignated by that natue. And I should infer, with a good deal of confidence; that the conrt meant to speak only of its own powers, and not of the privilege of individuals, but for the fact that the oourt ascribes the power to sus fend to the Legislature upon political grounds. t says "that question depends upon political considerations, on which the Legislature ia to decide." Now, 1 had supposed that questions did not belong exclusively to the Legislature, because tbey depend upon political considera tions, inasmuch as the President, in bis coo-, stitutional and official duties, is quite as politi cal as is tbe Congress,' and Las daily occasion in the common routine of affairs to determine questions upon political considerations alone. If by tbo phrase tbe suspension of the priv ilege ot tbe writ of habeas corpus, we must understand a repeal of all power to issue the writ, then I freely admit that none but Soo gresacando it. But if we are at hbertv to understand tbe phrase to uieau, that in caso of a gicat and diDgerous rebellion, like tfco present, the public safety requires the arret! and confinement of persons implicated in that rebellion, I as freely declare the opinion, that tbe President has lawful power to su>pend the privilege of persons arrested under such cir cumstances. Por he is especially charged by the Constitution with the "public safety," and he is the solo judgo of the emergency which requires hie prompt action. t his power in the President is no part c? his ordinary duty iu tiins of peace; it is teat' porary and exceptional, and was intended only to meet a pressing emergency, when tho judi ciary is fouud t,J be too we tic to insure the public safety—when (in the 1 tngusgo of tho act of Congress) there are "combinations too powerful to be suppressed by tho ordinary oourse of judicial proceedings, or by the pow ers vested in the marshals." Then, and not 111 then, has h the lawful authority t ) call to his aid the military power of the nation, and with that power perform his great legal and constitutional duty to suppress the ir.surreo* tioc. And shall it be said that when he has fought and captured the insurgent army, and has seised their secret spies and emissaries, he is bound to bring their bodies tefore any judge who may send bun a writ of habeas cor pus, "to do, submit to and receive whatsoever the said judge shall consider in that behalf?" I deny that he is under any obligation to obey such a writ, issued under such circumstances.— And in my making this denial I do but follow the highest judicial authority of the nation. In the case of Luther vs. Borden (commonly called the Rhode Island case) reported in 7 Howard, page 1, the Supreme Court discussed several of the most important topics treated ot in th ; s opinion, and among them the power of the President alone to decide whether the txig<ncy exists authorizing him to cati out tho militia under tho act of 179-5. Tbe court affirmed tho power of the President in that respect, and denied the power of the court to examine and adjudge his proceedings. The opinon of the court, delivered by the learned Chief .Justice Taney, declares that if tho court had had that pow er, "then it would become the duty of the court (provided that it came to the conclusion that the President bad decided incorrectly) to discharge those who were arrested or detained by the troops in tbe service of tho United States, or the Gov ernment which the President was endeavoring to maintain. If (says that learned court) the ju dicial power extends so far, the guarantee contain, ed in the Constitution of the United States (mean ing, of course, protection against insurrection) is a guarantee of anarchy and not of order." ' > - Whatever 1 have said about the suspension ot the privilege of the writ of habeas corpus has been said in deference to the opinions of others, and not because I myself thought it necessary to treat of that subject at all in reference to the present pos ture of out national aff lira. Por, not doubting tbe power of tbo President to capture and hold by force insurgents in open arms against the Government, and to arrest and imprison their suspected accom plices, I navor thought of first suspending the writ of habeas corpus any more than I thought of first suspending the writ of replevin, before seizing arms and munitions destined for the enemy. The puwer to do these things is in tbe hand of tbe President, placed there by the Constitution and tbe statute law as a sacred trust, to be used by bini in bis best discretion in the performance of his great first duty—to preserve, protect and defeud the Constitution. And for any breach of that trust he is responsible beloro the b gh court of impeach ment, and before no other human tribunal. The powers of tho President falling within this general class, have been several times considered by tbe judiciary, and have, I believe, been uniform ly sustained, without, materially varying from the doctrines laid down in this opinion. I content my self with a simple reference to the cases without encumbering this document, already too long, with copious extracts. (The Rhode Island case, 7 How ard, page 1; Fleming vs. Page, 9 Howard, page 615 ; Cross vs. Harrison, 16 Howard, page 189 ; the Santissima Trinidad, 7 Wheaton, page 30o; Martin vs. Mott, 12 Wheatou, page 29.) To my mind it is not very important whether tve call a particular power exercised by tho President a peace power or a war power, for undoubtedly, he is armed with both. He is the chief civil magis trate of the nation, and being such, and because he is such, he Is the constitutional commander-in chief of the army and navy ; and thus within the Lrnits of the Constitution, he roles in peace and commands in war, and at this moment he is in the full exercise of ail the functions belonging to both those characters. The civil Administration is still going on in its peaceful course, and yet we are in the midst of war—a war in which the enemy is, tor the present, dominant in many States, and bas his secret allies and accomplices scattered through many other States which aio still loyal and true.— A war ail the more dangerous, and more needing jealous vigilance and prompt action, because it is an internecine and not international war. This, Sir, is my opinion, the result of ray best reflections upon the questions propounded by yon. Such as it is, it is submitted with all posslblu re spect, by your obedient servant, EDWARD BATES, Att'y-General. Asa tnsn "tipples" ha generally grows reckless; iu this oase, (ho more the fewer acrus pies. It is rather remarkable that the first apple in Paradise should have turned out the fitst pair. Camphor has been discovered to he au anti ibat tumble poison, atrvokniue.
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