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tice of the United States which raised this very question
-Ex parte Merryman, Taney, 246 (1861). The petition for the habeas corpus recited that on the 25th of May, 1861, the petitioner, a citizen of Baltimore, was arrested by order of a Major-General of the United States, and committed to Fort McHenry, within the District of Maryland. A writ of habeas corpus was issued by the Chief Justice, then sitting in chambers, to the Commandant of the fort, directing him to bring the prisoner to the court. The Commandant refused to produce the prisoner upon the ground that the arrest was made by the military arm, while the prisoner was in an overt act of treason, and upon the further ground that the Commandant was duly authorized by the President of the United States in such cases to refuse the writ of habeas corpus. Chief Justice TANEY, in high indignation, ordered attachment to issue. The officer proceeded to Fort McHenry for the purpose of serving the writ. Stopped at the outer gate, he sent in his name; after a time the messenger returned with the reply that there was no answer to his card. In view of the superior force at the disposal of the Commandant, the Chief Justice excused the marshal from taking any further proceedings.
On the next day this memorandum was placed on file for an opinion: I ordered the attachment yesterday because upon the face of the return the detention of the prisoner was unlawful upon the grounds: 1. That the President under the Constitution of the United States cannot suspend the privilege of the writ of habeas corpus nor authorize a military officer to do it. 2. A military officer has no right to arrest and detain a person not subject to the rules and articles of war, for an offense against the laws of the United States; and if a party be arrested by the military it is the duty of the officer to deliver him over immediately to the civil authority to be dealt with according to law.
The result of this collision was that the executive held its man. That must always be the result; and, indeed, the humiliation of the Chief Justice was merited. The truth of the matter is that effective execution in time of war requires that, when necessity arises, the writ of habeas corpus shall be suspended at once. The President is charged with the faithful execution of the laws, and by consequence empowered to use every possible means that may be given him by implication. The executive power of the government must suppress rebellion and repel invasion. It is first in the field, best acquainted with the extent of the danger, and well qualified to judge of the circumstances. As a present question in constitutional law, it is hardly too much to claim that the executive might today suspend the writ.
But to allow the suspension of the writ is one thing, and to allow conviction by a court martial is quite another thing; one cannot be founded upon the other. The leading case in this whole subject is Ex parte Milligan, 4 Wall. 2 (1866). The case made for the petitioner was this: He was a civilian, he had been arrested by the military, he had been tried before a military commission, he had been sentenced to be hanged; and the question certified to the Supreme Court of the United States was: Whether such a military commission had power to try a civilian in the state of Indiana in 1864.
Mr. Justice Davis delivered an impressive opinion: The importance of the main question presented by this record cannot be overstated; for it involves the very framework of the government and the fundamental principles of American liberty. No graver question was ever considered by the court, nor one which more nearly concerns the rights of the whole people; for it is the birthright of every American citizen when charged with crime to be tried and punished according to law. No. doctrine involving more pernicious consequences, was ever invented by the wit of man than that any provisions of the Constitution can be suspended during the exigencies of government. It is difficult to see how the safety of the country required any such martial law in Indiana in 1864. If any of her citizens were plotting treason the military had the power of arrest until the government was prepared for their trial. The courts were ready and open to try them. Milligan will therefore be discharged. Martial law is created only by a necessity.88
$ 88. Command.
These coercive forces in government in time of need are well set forth in Durand v. Hollins, 4 Blatch. 451 (1860). This was an action of trespass for the destruction of property of the plaintiff at Greytown, Nicaragua, by order of the defendant. The defendant pleaded that he was a commander in the navy of the United States; that by virtue of order of the President, he directed the bombardment of Greytown, which resulted in the destruction complained of; and that the bombardment was justified by the failure of the authorities of Greytown to give redress for acts of violence perpetrated upon inhabitants of the United States.
64 APPREHENSION.-Hardy v. Murphy, 1 Esp. 294; Booth v. Hanley, 2 C. & P. 288; Martin v. State, 89 Ala. 115; State v. Brown, 5 Harr. 505; Vandeveer v. Mattocks, 3 Ind. 479; Boutte v. Emmer, 43 La. Ann. 980; Commonwealth v. Wright, 158 Mass. 149; Quinn v. Heisel, 40 Mich. 576; State v. Dierberger, 96 Mo. 666; Burns v. Erben, 40 N. Y. 463; Neal v. Joyner, 89 N. C. 287; Douglass v. Barber, 18 R. I. 459.
Mr. Justice NELSON upon circuit held: The executive power under the constitution is vested in the President of the United States. He is Commander-in-Chief of the Army and Navy, and has imposed upon him the duty to take care that the laws be faithfully executed. As the executive head of the nation the President is made the only legitimate organ of the general government to open and carry on negotiations with foreign nations. Now, as it respects the interposition of the executive abroad for the protection of the lives and property of the citizen the duty must of necessity rest in the discretion of the President. The great object and duty of government is the protection of the lives, liberty, and property of the persons composing it, whether at home or abroad, and any government failing in the accomplishment of that duty is not worth preserving. It is quite clear that in all cases where a public act or order rests in executive discretion neither he nor his authorized agent is civilly responsible for the consequences.
This conception is seen in a late assertion of the plenary papers of the executive in the opinion on the Foreign Cables, 22 Opin. 13 (1898). On May 4, 1897, the French ambassador submitted to the Secretary of State the application of the French Company Telegraphic Cables for permission to land a cable supplementary to that which it had between Brest and Cape Cod, upon the same terms and conditions as the main cable. The State Department answered that the present executive did not regard himself as clothed with authority to authorize the landing of submarine cables without legislation of Congress. This note was forwarded to the company through the ambassador; but the work of landing the cable had been completed by the company in the meantime. The opinion of the Attorney-General was asked as to what could be done under those circumstances.
RICHARDS, the acting Attorney-General, returned a vigorous opinion: The preservation of our territorial integrity and the protection of our foreign interest are intrusted in the first instance to the President. In the protection of these fundamental rights, which are based upon the Constitution and grow out of the jurisdiction of this nation over its own territory as a distinct sovereignty, the President is not limited to the enforcement of specific acts of Congress. I am of opinion, therefore, that the President has the power in the absence of legislative enactment to control the landing of foreign submarine cables. He may either prevent the landing if the rights intrusted to his care so demand, or permit it on conditions which will protect the interests of the government and its citizens. And if a landing has been effected without the consent or against the protests of this government, respect for its rights and compliance with its terms may be enforced by applying the prohibition to the operation of the line unless the necessary conditions are observed, and this may be done by force.
This certainly is an elementary power of the administration—the power to command. The right to direct what shall be done is the right of the chief executive in all governments. In this aspect the administration is