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of foreign coin, and so on through the whole range of the delegated interests. The Federal Judiciary was so constituted as to take cognizance of these things, and at the same time, to act in obedience to the civil institutions of the States" to adopt and follow the decisions of the State courts," in the language of Chief Justice Taney, “ in all questions which concern merely the constitution and laws of the State.” When we reflect that titles to real estate and other kindred matters are almost exclusively determined by State laws, and that the jurisdiction of the courts of the latter is absolute over quite all the relations of the people, the reason of this obedience will be seen.
In view of these things, how is it possible, in the absence of direct and positive authority, to that end, to sustain the conclusion, that the writ may be suspended over all the Union, including the Federal and State Judiciary, by the mere enactment of Congress, or the more summary process of Executive proclamation ?
The least that can be said of such a proceeding, if the power is conceded, is, that Congress is clothed with authority, in fact, to change or overthrow the whole scheme of government. It is folly to contend that an elective republic can be maintained on any other basis than an untrammelled, independent judiciary.
It is most unlikely that a people, unreasonably jealous of the aggregate civil powers of the Federal Union, would clothe any department thereof with the right and the means of overthrowing the civil institutions of the States and transforming their Union into a military despotism. All this is possible by the exercise of such a power. The first step in the progress of the transformation, is the removal of a tribunal which has exclusive power to judge of the constitutionality of the acts of both Congress and the President.
"But it is answered, it is the suspension only of a single function of the courts, and that, in all other respects, they are as free to act, within the scope of the law, as before.
If this special pleading has any force, it proves too much. If the courts are free to execute the laws, there can be no justification for the suspension of the writ. If the civil government is ample, the intervention of the military is surely wanton. The writ of habeas corpus can do no injury to a free people, or a free state when
its laws are not obstructed by civil disabilities. It was ordained in aid of the people, and expressly to prevent the violation of their rights of person, by the arbitrary acts of those in authority. No honest man ever sought the suspension of this great remedy, when the courts were free to exercise their judicial functions.
It is not, then, the mere suspension of the writ which is demanded; it is the practical overthrow of the judicial power of the state. So we find it. The President made it partial at first; and followed the act almost immediately by the declaration of martial law. Finding the two measures to work admirably in the interest of consolidation, they were again followed by another proclamation, suspending the writ in all the States and Territories of the Union. But it was not alone, we repeat, the writ of habeas corpus that was suspended; all the powers of the judiciary, State and Federal, were either interdicted or placed under the actual government of military commanders. These events are too recent and well authenticated to be doubted or denied. We live to-day under the surveillance of marshals and provost marshals; and are everywhere told, that the President was authorized, by virtue of power conferred upon him by Congress, drawn from an express constitutional grant, to do and direct these things!
Having shown, as we think, that neither Congress nor the President has any legal right to suspend the writ, and that its suspension is only authorized, in any event, over certain localities where the overthrow of the civil authorities has been effected by “rebellion or invasion,” and then only by the supervening power of the army, we now propose to discuss the legal limits of suspension, by whomsoever declared.
The subject comes before the country in the form of a paragraph taken from the Constitution of the United States. In another part of that instrument a judicial department is authorized. In order that we may be perfectly accurate, we repeat entire the second section of the third article, which covers all the grants of power made to the Federal Judiciary:
“ 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, or which shall be made, under their authority;-to all cases affecting ambassadors, other public ministers, and consuls ;-to all cases of admiralty and maritime jurisdiction;—to controversies to which the United States shall be a party ;—to controversies be. tween two or more States ;-between a State and citizens of another State ;-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."
The jurisdiction of the United States is here expressly limited to specific relations, the first of which is by far the most important, embracing "all cases arising under the Constitution, the laws of the United States, and treaties made or which shall be made under their authority.” It is obvious that this clause covers all the expressly delegated powers, and such as may be necessary to carry them into effect, and nothing else. For illustration, all postal and revenue matters, currency, the regulation of commerce, and all other powers delegated to the Union, come within the jurisdiction of the federal courts. So of all controversies “between a State and citi. zens of another State," “ between citizens of different States," and so on through the special cases laid down.
On the other hand, the federal courts have no jurisdiction (with the single exception embraced in the section quoted), covering all the ordinary relations and interests of life. They are as clearly beyond their control in respect to everything of the kind, as of the courts of England or France. The Union is to them, touching such matters, a foreign government; because the States not only retain original and exclusive jurisdiction over them, but maintain a complete system of laws, with ample executive and judicial powers for their enforcement. These laws, as we have shown, embrace quite all the interests of society. They are manifestly the rule, while the powers delegated to the Union constitute the obvious exception.
It seems incredible, with the chart of the latter before us, and the operation of all the machinery of the States by our own hands, under the direction of engineers of our own appointment, that we should be capable of running into controversy upon the subject, or commit or permit the least error, in a case so clear.
It will be remembered, that in ordaining the Federal Judiciary, it was made to cover all the delegated powers. It is the judicial machinery of a complete government. Its powers are coextensive with the powers of that government. They are limited; because those of the United States are limited. Whatever the President may rightfully do, the judiciary may act upon. So of Congress. The opposite of this is equally true. Whatever the judiciary has no constitutional jurisdiction over, in respect to persons and property, the President and Congress are excluded from ; because the authority of the three coördinate departments of the government was delegated to them by the States, and the whole was organized into and constituted one system of laws, on the express condition, that “ the powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively or to the people.” This certainly fixes the unity of the three departments. With different duties and obligations, their boundaries are identical, the scope of their authority the
How, then, is it within the constitutional power of any federal agency to suspend the privilege of the writ of habeas corpus, beyond the jurisdiction of the Federal Judiciary? The habeas corpus act existed in all the States, when the Union was adopted; is it competent for Congress to travel out of the federal beat and command its suspension by the State Courts, in respect to matters which the State not only never delegated to the United States, but expressly reserved to themselves or their people ?
It makes nothing in favor of this pretension, that the suspension is intrusted to Congress, because that body, like the judiciary, is limited to the delegated powers. It will not be urged, surely, that the restrictive words of the grant, viz., “ The privilege of the writ shall not be suspended " except in certain cases, confers authority to suspend it over things not embraced in the Federal Union. The organic law reads, “The Congress shall have power" to do certain enumerated things the right of suspension not one of them), and it is otherwise provided, as we have seen, that nothing else shall be done.
The legal inference to be drawn from this statement, is clearly
against the right of that body to suspend the writ, on any terms, and absolutely conclusive against the power of suspension, beyond the legal jurisdiction of the Federal Judiciary, or what is the same thing, beyond the limits of the federal syscem.
The latter would be rightly classed as a measure proposing an amendment to the Constitution, for it involves, in its enforcement, not only a modification of fundamental principles, but can hardly fail to change the very character of the government.
The union of the civil and the military powers, limited exclusively to the federal system, under the control of the President or Congress, would be bad enough ; but its extension so as to absorb State institutions, the concretion of all the parts of our complicated political machinery into one compact whole, is a proposition so monstrous, disloyal, and treasonable, that to name ought to be enough to defeat it. The existence of civil commotions should stimulate every true friend of civil liberty to struggle with all energy to preserve the integrity and uphold the authority of the Constitution and laws of the country. Instead of affording a just ground for relaxing our fidelity to the great principles of free government, they impose upon every honest man a necessity for increased vigilance in their strict maintenance.
There are dangers enough to be apprehended from the workings of the civil administration, without needlessly adding to them those inherent in military rule. We have witnessed the revolutionary power of majorities; the tendency of one department to encroach upon the legal functions of another; the enactment and enforcement of laws having no other foundation than the alleged necessities of the day; the suppression of free speech, of the press, and the overthrow of personal rights—the exercise, indeed, of almost absolute government, by the civil authorities. Superadd to these political errors the despotic enforcement of martial law, and our fall will be complete. The recognition, to the least degree, of the latter, or even of military rule, is fatal to the integrity of the former. It is that loss of virtue which justifies licentiousness and makes regeneration and atonement impossible. Governments can no more escape the effects of this species of