the laws be faithfully executed." He is not authorized to execute them himself, or through agents or officers, civil or military, appointed by himself, but he is to take care that they be faithfully carried into execution as they are expounded and adjudged by the coördinate branch of the Government to which that duty is assigned by the Constitution. It is thus made his duty to come in aid of the judicial authority, if it shall be resisted by a force too strong to be overcome without the assistance of the Executive arm. But in exercising this power, he acts in subordination to judicial authority, assisting it to execute its process and enforce its judgments.

suspens

With such provisions in the Constitution, expressed in language too clear to be misunderstood by any one, I can see no ground whatever for supposing that the President, in any emergency or in any state of things, can authorize the ion of the privilege of the writ of habeas corpus, or arrest a citizen, except in aid of the judicial power. He certainly does not faithfully execute the laws if he takes upon himself legislative power by suspending the writ of habeas corpus — and the judicial power, also, by arresting and imprisoning a person without due process of law. Nor can any argument be drawn from the nature of sovereignty, or the necessities of government for self-defense, in times of tumult and danger. The Government of the United States is one of delegated and limited powers. It derives its existence and authority altogether from the Constitution, and neither of its branches- executive, legislative, or judicial- can exercise any of the powers of government beyond those specified and granted.

154. Opinion of Attorney-General Bates.1

I am clearly of opinion that, in a time like the present, when the very existence of the nation is assailed by a great and dangerous insurrection, the President has the lawful discretionary power to arrest and hold in custody persons known to have criminal intercourse with the insurgents, or persons against

1 July 5, 1861. McPherson, Political History of the United States of America during the Great Rebellion, 159–61 passim.

whom there is probable cause for suspicion of such criminal complicity. And I think this position can be maintained, in view of the principles already laid down, by a very plain argument.

The Constitution requires the President, before he enters upon the execution of his office, to take an oath that he "will faithfully execute the office of President of the United States and will, to the best of his ability, preserve, protect, and defend the Constitution of the United States."

The last clause of the oath is peculiar to the President. All the other officers of Government 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 required in so solemn a manner to undertake. And then follows the broad and compendious injunction to "take care that the laws be faithfully executed." And 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 office of the Government. And this constitutes him, in a peculiar manner, and above all other officers, the guardian of the Constitution-its preserver, protector, and defender.

It is the President's bounden duty to put down the insurrection, as, in the language of the act of 1795, the "combinations are too powerful to be suppressed by the ordinary course of judicial proceedings, or by the powers vested in the marshals.' And this duty is imposed upon the President for the very reason that the courts and the marshals are too weak to perform it. The manner in which he shall perform that duty is not prescribed by any law, but the means of performing it are given in the plain language of the statutes, and they are all means of force the militia, the Army, and the Navy. The end, the suppression of the insurrection, is required of him; the means and instruments to suppress it are lawfully in his hands; but the manner in which he shall use them is not prescribed, and could not be prescribed, without a fore-knowledge of all the future changes and contingencies of the insurrection. He is therefore necessarily thrown upon his discretion as to the

manner in which he will use his means to meet the varying exigencies as they arise. If the insurgents assail the nation with an army he may find it best to meet them with an army, and suppress the insurrection on the field of battle. If they seek to prolong the rebellion and gather strength by intercourse with foreign nations, he may choose to guard the coast and close the ports with a navy, 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 insurrections in aid of the original rebellion, he may find it both prudent and humane to arrest and imprison them. And this may be done either for the purpose of bringing them to trial and condign punishment for their crimes, or they may be held in custody for the milder end of rendering them powerless 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 prudent for him to employ the powers entrusted to him, to enable him to discharge his constitutional ånd legal duty; that is, to suppress 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. . . .

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 magistrate of the nation, and the most active department of the Government, is eminently and exclusively political in all its 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. . . . 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 reexamine and reverse or affirm the acts of the person who imprisoned him. And I think it will hardly be seriously 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. . . .

If by the phrase the suspension of the privilege of the writ of habeas corpus, we must understand a repeal of all power to issue the writ, then I freely admit that none but Congress can do it. But if we are at liberty to understand the phrase to mean, that in case of a great and dangerous rebellion like the present, the public safety requires the arrest and confinement of persons implicated in that rebellion, I as freely declare the opinion that the President has lawful power to suspend the privilege of persons arrested under such circumstances; for he is especially charged by the Constitution with the "public safety," and he is the sole judge of the emergency which requires his prompt action.

This power in the President is no part of his ordinary duty in time of peace; it is temporary and exceptional, and was intended only to meet a pressing emergency, when the judiciary is found to be too weak to insure the public safety · when (in the language of the act of Congress) there are "combinations too powerful to be suppressed by the ordinary course of judicial proceedings, or by the powers vested in the marshals." Then and not till then, has he the lawful authority to call to his aid the military power of the nation, and with that power perform his great legal and constitutional duty to suppress the insurrection. And shall it be said that when he has fought and captured the insurgent army, and has seized their secret spies and emissaries, he is bound to bring their bodies before any judge who may send him a writ of habeas corpus, "to do, submit to, and receive whatsoever the said judge shall consider in that behalf?"

...

CHAPTER LII

THE WAR POWER AND CIVIL RIGHTS

THE theory upon which the Federal Government waged war led to many difficulties in actual practice. By the terms of the proclamation declaring a blockade, privateering was to be treated as piracy, but President Lincoln shrank from the consequences when crews of captured privateers were brought to trial. It was well understood that the Confederate Government would retaliate. In respect to life and liberty, therefore, the administration simply fell back upon the rules and practices of international law. In dealing with the property of secessionists, greater difficulty was experienced. During the second session of the Thirtyseventh Congress, various bills were considered which contemplated the punishment of secessionists by the confiscation of their property. At the same time, it was generally hoped that the question of slavery would receive a definite settlement. Confiscation and emancipation were two problems which created bitter dissensions in the ranks of the governing party. The following extracts from the debates in Congress represent the ultra-radical and the conservative views. The Confiscation Act adopted July 17, 1862, was a compromise measure. Briefly stated, it made rebellion a felony and fixed severe penalties for treason and rebellion. It directed the seizure of all the property of specified classes of persons engaged directly and indirectly in rebellion, and by action in rem in the

courts of the United States provided for its condemnatio ale as

enemies' property. When brought within the military or civil jurisdiction of the United States, by capture or otherwise, slaves of persons in rebellion were declared free. Fugitive slaves were not to be given up unless their owners declared under oath that they had not aided the rebellion. The President was authorized to employ negroes as soldiers and to make provision for the colonization of freedmen in some foreign country.

155. Senator Collamer on Confiscation of Rebel Property.1 Mr. President, I have already remarked that in whatever we do we must keep fairly within the limitations of the Constitution. It will not do to say that because we need to do this thing, because it is necessary in our judgment, we will do it for that reason. The limitations and prohibitions of power in the Constitution were put there on purpose to prevent our doing such things when we wanted to do them.

1 April 24, 1862. Congressional Globe, 37 Cong., 2 Sess., 1809-10, passim.