« ForrigeFortsett »
All this, we repeat, is a part of the record of our own political household. It was the work, in a legal sense, of our own people. It is our own history. Its honor, and its example, are ours.
behind it, without an open abandonment of free government.
It is clear, then, that the President was clothed with no authority to suspend the writ; and such, we apprehend, is the almost unanimous opinion of the country.
The right of the legislative department to do in this case what principle, policy, and history concur in denying to the executive, is another and far more important question. It is more important, simply because that department has assumed to exercise the power of suspension. It has ordained a precedent, and although it may not be received as good law that congressional legislation is proof of constitutional right, yet it is undeniably true that there are many personsfar too many—who are satisfied with this kind of reasoning
We well understand, that a denial of the right of Congress or the President, to suspend the privilege of the writ imposes upon the person who urges it, the duty of showing by what authority and action it may be suspended.
It is impossible to overlook, in discussing the subject, not only the character of the Union, but of the States which created it. Nowhere else in the world was there a system of laws more absolutely free, or a people more resolute or vigilant in their maintenance. What was prominent over every other matter of government, was their resolution to maintain, at all times and in all exigencies, the complete subordination of the military to the civil authority. This was not a mere theory or fancy of the day, but a great law of public opinion, of universal acceptation and government.
It is hardly possible that such a people, not only jealous of military rule, but expressing fears of the domineering civil power of the Union, should so construct the latter as directly or indirectly to be able to violate this fundamental idea of freedom. If Congress may suspend the writ or authorize its suspension, though it places before the President one impediment to the exercise of irrespon. sible power, it does not close the door against it, as was the evident purpose of the States in creating the Union. It makes it little better, that Congress instead of the President has authority to break down the barrier between the civil and the military power. That barrier was universally regarded as necessary to the preservation of the former and the control of the latter. The governments of the States and the Union are purely civil institutions. In no event was it intended that they should be anything else. Military authority, as an element of government, was never contemplated. The army was recognized as sheriffs, marshals, and other ministerial officers were recognized, to perform ministerial duties, not legislative or judicial. There was no original authority placed in its hands. Its duty was to obey, not make laws. It possessed neither peace nor war powers, of a civil or political nature.
How are we then justified in the conclusion that either Congress or the President is authorized to suspend the writ? Such suspension, if legal, inaugurates the military head of the nation, and of necessity makes it supreme over all civil institutions; for it is the right of every people to have government.
If military rule was not contemplated by the States, if its subordination to the civil authority was universally demanded, is it not morally impossible that the framers of the Constitution should have conferred upon Congress the least authority to emasculate the judiciary?
What need was there for inserting in that compact its stringent prohibitions against the arbitrary exercise of authority over persons and property, if, by a sweeping power, they intended to permit their practical suspension by Congress on precisely the occasions when power is most likely to be abused ?
Were civil institutions of such doubtful utility and efficiency, that they could be trusted only in peace ?
From what events in our own or the history of England, was it determined that military government may be inaugurated over the whole country "in cases of rebellion or invasion” in any particular
part of it ?
Was rebellion, in one State, regarded as sufficient to deprive the people of all the others of their civil institutions ?
It is obvious to the least-informed person that no authority is conferred upon Congress to suspend the writ. Yet it may be suspended, and in such manner and place as to effect the end desired, the invigoration of the civil authorities, without inflicting a fatal wound upon the body politic. The Constitution, we repeat, is silent touching the manner and the authority to suspend the writ. Granting the right, we are restricted in its enforcement, at least to the limits of its previous exercise by the governments of the States. In other words, the status of the military had been fixed, by an irrepealable law of public sentiment in this country and England, and we have no right, on the authority of the vague grant in question, to interfere with that status. We have no right to infer, simply because the right of suspension is conceded, that it may be carried out so as to confer authority upon the military to assume superior control over the laws of the United States, and the States. If those laws, in a particular place or locality, are menaced or overthrown, by rebellion or invasion, the best tbing the civil authorities can do, is to invoke the aid of the military; for it is then that the public safety is endangered, and it is then, and then only, that the latter is warranted to supervene, and assume control, to the end that the civil administration may go on with its peaceful work. Meanwhile, in every other part of the Union the example of absolute civil government, within the scope of the laws, is held up to the rebels or insurgents of the disaffected district or section. By this simple theory of the case, the great end sought to be attained, the maintenance of the Union, is achieved, without the least infringement of the system. We can better afford to lose the General Government, than the general character of the people as the peculiar guardians of liberty.
It will be much easier to reconstruct the former than to recover the latter when lost.
Rebellion consists of combinations to resist or overthrow the laws of the state. When it becomes so formidable as to endanger the public safety-which means, we repeat, the inability of the civil power to enforce the laws within the circle of the disaffection it is the right of the military to suspend the writ. There would seem to be no right to further invade the ordinary functions of the judiciary, because that department is coequal with the legislative and the executive, and there is no semblance of authority to interfere with its duties beyond that of the suspension of this particular warrant. General Jackson at New Orleans disregarded the command of the judiciary,“ in time of war; " and was subsequently fined for contempt. He paid the amount cheerfully, and with it, that deference to the supremacy of the civil power, which he never failed to assert over the military. The fine was subsequently refunded to him, by direction of Congress, which was a testimonial to his integrity, without any confession of his right to disregard the orders of the court. He might well have maintained, had that been the question, that by virtue of the grant now under discussion, his suspension of the writ was so far legal as to exempt him from liability to injured persons on account of the act. But even then, his exemption could only be established by showing that the public safety demanded it.
The language of the Constitution partakes far more of the character of a guarantee of the rights of the Habeas Corpus Act, than of a delegation of power to suspend it. It reads: “The privilege of the writ shall not be suspended,” except in certain cases of “rebellion or invasion."
The means of judging when the public safety may require it, is nccessarily confined to the authorities of the locality. This was peculiarly so when the Constitution was adopted. It exhibits, we imagine, the intention of its framers. Had it been their purpose to confer the right upon Congress, they would surely have said so.
If it was their purpose to provide for local contingencies, they would most naturally have entrusted the right with persons of the place, who could best determine when the public safety is endangered and therefore the suspension required.
Nothing is better established than that the governments of the States and the Union are purely civil governments. Military authority is not only no part of their polities, but is excluded from their administration, by positive law and long and well settled national habits and traditions. This is confirmed by the whole analogy of the governments of the States and the Constitution of the United States. As Hume says of England. "A free monarchy, in which every individual is a slave, is a glaring contradiction.” There is, we maintain, in these habits and traditions, a moral power
scarcely less cogent and binding than the obligations of the Constitution and laws. They constitute the very basis of government. It was the violation, on the part of England, of these traditional rights, far more than the actual sacrifice of material interests, that led to the war of the Revolution. In the great act which declared our separation, we proclaimed to the world that the king had “ affected to render the military independent of and superior to the civil power; ) that he bad deprived us of “the benefits of trial by
jury;” that he had created new offences; that he had quartered soldiers upon the people.
We allude to these records of history to show the force of certain ideas or convictions, which, wo maintain, constitute a part of our free system of laws.
The authority claimed and exercised by Congress to suspend the functions of the judiciary, or to authorize the President to do so, is not only inconsistent then with the political governments of the States and the Union, but in plain opposition to the national habits and traditions of the people. Nothing short of absolute necessity, involving, through its agency, the preservation of the Union, could have justified the lodgment of such a power with the army; and we are bound to show, before we acknowledge its existlance there, not only the great peril of the state, but that its exercise is necessary to its preservation. There is a total absence of words conveying authority to any particular person or department. This leaves the clause to be construed by the application of general principles, having in view, at all times, the character of the States and the Union, and the habits and traditions of the people. Nor must it be forgotten, that general rebellion, embracing all the States, is quite impossible. There will always be what we call loyal States; for without loyal States there can be no pretence either for rebellion or Union. The proposition to cripple the civil administration of the faithful, in order to conquer and subdue the unfaithful, is too monstrous for consideration. If punishment is to be inflicted, let it fall upon the transgressor. It is enough for the loyal people that they employ themselves and their means to put down the disloyal. They are limited in this work to the enforcement of the laws. They are willing to sacrifice