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21

it has been of great use to the President in expanding his power at the expense of Congress. This, in turn, has broadened the area of conflict between these two institutions and, consequently, if indirectly, has further impeded civilian control by increasing the likelihood that military leaders will be drawn into political controversy.

*** 48

No sooner had the first shots been fired at Fort Sumter than President Lincoln was confronted with the most serious crisis in the Nation's history since the founding of the Republic.

On April 25, 1861, fearful for the safety of the Nation's Capital in view of pro-Confederate activities in Maryland, Lincoln addressed a letter of instructions to General Scott telling him to watch the activities of the Maryland State Legislature and to act to suppress insurrection including "*** in the extremest necessity, the suspension of the writ of habeas corpus.'

9 49

On May 25, 1861, one John Merryman was arrested by Federal soldiers and confined in Fort McHenry under the command of General Cadwalader. Merryman was alleged to be an officer of a company having arms and intending armed hostility against the United States. On May 26, 1861 a petition for habeas corpus was presented to Chief Justice Taney who thereupon ordered that the writ of habeas corpus issue and be returnable before the Chief Justice in the United States Circuit Court room in Baltimore on the following day, May 27, 1861. On May 27, 1861, General Cadwalader had the writ returned by a Colonel Lee. In the return to the writ General Cadwalader explained that Merryman was being held because of a charge

45 Samuel P. Huntington, Civilian Control and the Constitution, in the American Political Science Review, vol. L. No. 3, September 1956, p. 690. Mr. Huntington makes the point that the framers of the Constitution deliberately divided control over the military between the Congress and the President and gave the Congress the important function of declaring war among others important to the military functions such as raising and supporting armies, making rules for the government of military forces, etc.

That Congress cannot take away the President's supreme command seems almost a truism particularly as it applies to the command of military forces. In the case of Swaim v. U. S. (28 Court of Claims, 173, 221; 1893) the Court of Claims stated its views as follows:

"It may be historically true that the commander in chief during the Revolution ascribed his power to order courts-martial directly to the Continental Congress; and it may also be true that at the time of the adoption of the Constitution the annual consent of Parliament to the existence of a standing army was conditioned upon statutory provisions relating to such military tribunals, though upon these historical questions the court expresses no opinion; but nevertheless there remains the significant fact in our military system that the President is always the commander in chief. Congress may increase the Army, or reduce the Army, or abolish it altogether; but so long as we have a military force Congress can not take away from the President the supreme command. It is true that the Constitution has conferred upon Congress the exclusive power 'to make rules for the government and regulation of the land and naval forces;' but the two powers are distinct; neither can trench upon the other; the President can not, under the disguise of military orders, evade the legislative regulations by which he in common with the Army must be governed; and Congress can not in the disguise of 'rules for the government' of the Army impair the authority of the President as commander in chief. "

49 The text of Lincoln's order is as follows:

"Lieutenant-General SCOTT.

WASHINGTON, April 25, 1861.

"MY DEAR SIR: The Maryland Legislature assembles tomorrow at Annapolis, and not improbably will take action to arm the people of that State against the United States. The question has been submitted to and considered by me whether it would not be justifiable, upon the ground of necessary defense, for you, as General in Chief of the United States Army, to arrest or disperse the members of that body. I think it would not be justifiable nor efficient for the desired object.

"First. They have a clearly legal right to assemble, and we can not know in advance that their action will not be lawful and peaceful, and if we wait until they shall have acted their arrest or dispersion will not lessen the effect of their action.

"Secondly. We can not permanently prevent their action. If we arrest them, we can not long hold them as prisoners, and when liberated they will immediately reassemble and take their action; and precisely the same if we simply disperse them-they will immediately reassemble in some other place.

"I therefore conclude that it is only left to the Commanding General to watch and await their action, which, if it shall be to arm their people against the United States, he is to adopt the most prompt and efficient means to counteract, even, if necessary, to the bombardment of their cities and, in the extremest necessity, the suspension of the writ of habeas corpus.

"Your obedient servant,

"ABRAHAM LINCOLN."

(From a compilation of the Messages and Papers of the Presidents by James D. Richardson, Bureau of National Literature, Inc., New York, 1897, vol. VII, pp. 3218-3219.)

On April 27, 1861, Lincoln authorized the suspension of the writ of habeas corpus by the Commanding General of the Army between the city of Philadelphia and Washington, D. C., and later extended the coverage of the authorization to New York and finally to Bangor, Maine. (Richardson, op. cit., vols VII and VIII, pp. 3219, 3220, 3240.)

22

EXECUTIVE ORDERS AND PROCLAMATIONS

of various acts of treason and that he, General Cadwalader, had been duly authorized by the President, in such cases, to suspend the writ of habeas corpus for the public safety. General Cadwalader asked the Chief Justice to postpone further action until the general could receive further instructions from the President.

The Chief Justice forthwith ordered a writ of attachment to issue against General Cadwalader for contempt in refusing to produce the body of John Merryman, the writ to be returned on the following day, May 28, 1861. On the following day the marshal made the following return to the writ of attachment:

I hereby certify to the Honorable Roger B. Taney, Chief Justice of the supreme Court of the United States, that by virtue of the within writ of attachment, to me directed, on the 27th day of May 1861, I proceeded, on this 28th day of May 1861, to Fort McHenry, for the purpose of serving the said writ. I sent in my name at the outer gate; the messenger returned with the reply, "that there was no answer to my card," and therefore, could not serve the writ, as I was commanded. I was not permitted to enter the gate. So answers

WASHINGTON BONIFANT,

United States Marshal for the District of Maryland.50

The Chief Justice rendered his opinion after stating:

*** that the marshal had the power to summon the posse comitatus to aid him in seizing and bringing before the court, the party named in the attachment, who would, when so brought in, be liable to punishment by fine and imprisonment; but where, as in this case, the power refusing obedience was so notoriously superior to any the marshal could command, he held that officer excused from doing anything more than he had done.51

In his opinion Taney concluded that the power to suspend the writ of habeas corpus is exclusively a legislative power and that the President cannot suspend the privilege nor authorize a military officer to do it. Taney based his argument on legal and constitutional history and the fact that the power to suspend the writ is contained in the first or legislative article of the Constitution.52

50 Taney's Decisions in the Circuit Court of the United States for the District of Maryland, 1836–61, Philadelphia, Kay & Bro., 1871, p. 252. 1 Ibid., pp. 252-253.

52 Ex parte Merryman, Ibid., pp. 256-258:

660 8 The clause of the constitution, which authorizes the suspension of the privilege of the writ of habeas corpus, is in the 9th section of the first article. This article is devoted to the legislative department of the United States, and has not the slightest reference to the executive department. It begins by providing that all legislative powers therein granted, shall be vested in a congress of the United States, which shall consist of a senate and house of representatives.' And after prescribing the manner in which these two branches of the legislative department shall be chosen, it proceeds to enumerate specifically the legislative powers which it thereby grants; and at the conclusion of this specification, a clause is inserted giving congress 'the power to make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this constitution in the government of the United States, or in any department or officer thereof.'

"The power of legislation granted by this latter clause is, by its words, carefully confined to the specific objects before enumerated. But as this limitation was unavoidably somewhat indefinite, it was deemed necessary to guard more effectually certain great cardinal principles, essential to the liberty of the citizen, and to the rights and equality of the states, by denying to congress, in express terms, any power of legislation over them. It was apprehended, it seems, that such legislation might be attempted, under the pretext that it was necessary and proper to carry into execution the powers granted; and it was determined, that there should be no room to doubt, where rights of such vital importance were concerned; and accordingly, this clause is immediately followed by an enumeration of certain subjects, to which the powers of legislation shall not extend. The great importance which the framers of the constitution attached to the privilege of the writ of habeas corpus, to protect the liberty of the citizen, is proved by the fact, that its suspension, except in cases of invasion or rebellion, is first in the list of prohibited powers; and even in these cases the power is denied, and its exercise prohibited, unless the public safety shall require it.

"It is true, that in the cases mentioned, congress is, of necessity, the judge of whether the public safety does or does not require it; and their judgment is conclusive. But the introduction of these words is a standing admonition to the legislative body of the danger of suspending it, and of the extreme caution they should exercise, before they give the government of the United States such power over the liberty

of a citizen.

"It is the second article of the constitution that provides for the organization of the executive depart ment, enumerates the powers conferred on it, and prescribes its duties. And if the high power over the liberty of the citizen now claimed, was intended to be conferred on the president, it would undoubtedly be found in plain words in this article; but there is not a word in it that can furnish the slightest ground to justify the exercise of the power

EXECUTIVE ORDERS AND PROCLAMATIONS

23

Taney went on to state that the civil courts and processes were functioning and that Merryman should have been charged and tried according to those processes.53

Although Taney's position was later vindicated by the Supreme Court 54 he had to content himself with addressing a plea to President Lincoln in the instant case. There is no evidence that the plea was heeded.

55

Lincoln himself was not unaware of the legal problems involved and he specifically referred the matter to the Congress in his message to the extraordinary session of Congress convened on July 4, 1861.56 Lincoln left the matter of legislation to the Congress and defended his action in suspending the writ of habeas corpus by asking: "Are all the laws but one to go unexecuted, and the Government itself go to pieces lest that one be violated? Even in such a case, would not the official oath (of the President) be broken if the Government should be overthrown when it was believed that disregarding the single law would tend to preserve it?" Lincoln himself underscored the fact in this message that "* ** nothing has been done beyond the constitutional competency of Congress."

Ex parte Merryman, Ibid, pp. 267–268.

54 See Ex parte Milligan, infra.

65 Ex parte Merryman, Taney's Decisions, op. cit., pp. 268-270:

"The constitution provides, as I have before said, that 'no person shall be deprived of life, liberty or property, without due process of law.' It declares that 'the right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated; and no warrant shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.' It provides that the party accused shall be entitled to a speedy trial in a court of justice.

"These great and fundamental laws, which congress itself could not suspend, have been disregarded and suspended, like the writ of habeas corpus, by a military order, supported by force of arms. Such is the case now before me, and I can only say that if the authority which the constitution has confided to the judiciary department and judicial officers, may thus, upon any pretext or under any circumstances, be usurped by the military power, at its discretion, the people of the United States are no longer living under a government of laws, but every citizen holds life, liberty and property at the will and pleasure of the army officer in whose military district he may happen to be found.

"In such a case, my duty was too plain to be mistaken. I have exercised all the power which the constitution and laws confer upon me, but that power has been resisted by a force too strong for me to overcome. It is possible that the officer who has incurred this grave responsibility may have misunderstood his instructions, and exceeded the authority intended to be given him; I shall, therefore, order all the proceedings in this case, with my opinion, to be filed and recorded in the circuit court of the United States for the district of Maryland, and direct the clerk to transmit a copy, under seal, to the president of the United States. It will then remain for that high officer, in the fulfilment of his constitutional obligation to 'take care that the laws be faithfully executed.' to determine what measures he will take to cause the civil process of the United States to be respected and enforced."

The full passage from Lincoln's message is as follows:

"... Soon after the first call for militia it was considered a duty to authorize the Commanding General in proper cases, according to his discretion, to suspend the privilege of the writ of habeas corpus, or, in other words, to arrest and detain without resort to the ordinary processes and forms of law such individuals as he might deem dangerous to the public safety. This authority has purposely been exercised but very spar ingly. Nevertheless, the legality and propriety of what has been done under it are questioned, and the attention of the country has been called to the proposition that one who is sworn to take care that the laws be faithfully executed' should not himself violate them. Of course some consideration was given to the questions of power and propriety before this matter was acted upon. The whole of the laws which were required to be faithfully executed were being resisted and failing of execution in nearly one-third of the States. Must they be allowed to finally fail of execution, even had it been perfectly clear that by the use of the means necessary to their execution some single law, made in such extreme tenderness of the citizen's liberty that practically it relieves more of the guilty than of the innocent, should to a very limited extent be violated? To state the question more directly, Are all the laws but one to go unexecuted, and the Government itsell go to pieces lest that one be violated: Even in such a case, would not the official oath be broken if the Government should be overthrown when it was believed that disregarding the single law would tend to preserve it? But it was not believed that this question was presented. It was not believed that any law was violated. The provision of the Constitution that 'the privilege of the writ of habeas corpus shall not be suspended unless when, in cases of rebellion or invasion, the public safety may require it' is equivalent to a provision-is a provision-that such privilege may be suspended when, in cases of rebellion or invasion, the public safety does require it. It was decided that we have a case of rebellion and that the public safety does require the qualified suspension of the privilege of the writ which was authorized to be made. Now it is insisted that Congress, and not the Executive, is vested with this power, but the Constitution itself is silent as to which or who is to exercise the power; and as the provision was plainly made for a dangerous emergency it can not be believed the framers of the instrument intended that in every case the danger should run its course until Congress could be called together, the very assembling of which might be prevented, as was intended in this case, by the rebellion * (Richardson, op. cit., vol. VII, pp. 3225-3226.)

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It was almost 2 years before the Congress passed legislation dealing with the matter of habeas corpus.57 The Habeas Corpus Act of March 3, 1863, authorized the President to suspend the writ when "* * * in his judgment, the public safety may require it ***” "". The act went on, however, to provide that reports of persons so detained be furnished to the circuit and district courts of the United States (persons who are "*** citizens of states in which the administration of the laws has continued unimpaired in the said Federal courts ***" and who are held "*** as state or political prisoners, or otherwise than as prisoners of war ***"). The act provided that when a list had been furnished to the court and when a grand jury had terminated its session "* * * without finding an indictment or presentment, or other proceeding against any such person, it shall be the duty of the judge of said court forthwith to make an order that any such prisoner desiring a discharge from said imprisonment be brought before him to be discharged.” The act made it a crime punishable by fine and imprisonment for any officer of the United States having custody of such persons to delay or refuse to execute the court's order.

Thus without saying so in specific language, the Congress legalized Lincoln's actions. In addition, however, the Congress asserted its jurisdiction over the matter of habeas corpus suspension.

It appears therefore, that in the face of most extreme emergency there may be a lag in statutory law as summarized above. As Professor Hart has pointed out "*** in a really critical situation * President Lincoln could preserve the Union only by taking action of doubtful legality without waiting for legislative authorization." 58

When the lag in legislative action is overcome by action of Congress, except for criminal penalties, the Congress may ratify the actions of the President, thereby curing defects which may have existed. In The Prize Cases (2 Black 635; 1862) the Supreme Court dealt with the challenge to the President's right to proclaim a blockade which resulted in the capture of prizes by the public ships of the United States. President Lincoln had declared a blockade on the 27th and 30th of April 1861. The question was whether a state of war existed which authorized the use of blockade under the laws of nations.

The Supreme Court pointed out that by acts of Congress of February 28, 1795, and March 3, 1807, the President was authorized to call out the militia and use the military and naval forces of the United States in case of invasion by foreign nations, * and to suppress insurrection against the government of a State or of the United States." The Court stated:

*If it were necessary to the technical existence of a war, that it should have a legislative sanction, we find it in almost every act passed at the extraordinary session of the Legislature of 1861, which was wholly employed in enacting laws to enable the Government to prosecute the war with vigor and efficiency. And finally, in 1861, we find Congress "ex majore cautela" and in anticipation of such astute objections, passing an act "approving, legalizing, and making valid all the acts, proclamations, and orders of the President, etc., as if they had been issued and done under the previous express authority and direction of the Congress of the United States."

Without admitting that such an act was necessary under the circumstances, it is plain that if the President had in any manner assumed powers which it was necessary should have the authority or sanction of Congress, that on the well

For the story of congressional consideration and action see George Clarke Sellery, Lincoln's Suspension Habeas Corpus as Viewed by Congress, a reprint from the Bulletin of the University of Wisconsin story Series, vol. I, No. 3; 1907.

Hart, op. cit., p. 61.

EXECUTIVE ORDERS AND PROCLAMATIONS

25

known principle of law, "omnis ratihabitio retrotrahitur et mandato equiparatur," this ratification has operated to perfectly cure the defect. In the case of Brown

v. United States, (8 Cr. 131, 132, 133,) Mr. Justice Story treats of this subject, and cites numerous authorities to which we may refer to prove this position, and concludes, "I am perfectly satisfied that no subject can commence hostilities or capture property of an enemy, when the sovereign has prohibited it. But suppose he did, I would ask if the sovereign may not ratify his proceedings, and thus by a retroactive operation give validity to them?"

Although Mr. Justice Story dissented from the majority of the Court on the whole case, the doctrine stated by him on this point is correct and fully substantiated by authority.

The objection made to this act of ratification, that it is ex post facto, and therefore unconstitutional and void, might possibly have some weight on the trial of an indictment in a criminal Court. But precedents from that source cannot be received as authoritative in a tribunal administering public and international law. On this first question therefore we are of the opinion that the President had a right, jure belli, to institute a blockade of ports in possession of the States in rebellion, which neutrals are bound to regard *59

The circumstances of emergency periling the very existence of the Nation may also give rise to a lag in the application of the law by the courts in the area of Presidential action. This is illustrated by the contrast of the actions of the Supreme Court in the cases of Ex parte Vallandigham and Ex parte Milligan, the first decided during the Civil War and the second decided after hostilities had ceased.60

Vallandigham, a civilian, was tried and convicted by a military commission appointed pursuant to an order of General Burnside, commanding the military department of Ohio. Vallandigham was arrested on May 6, 1863, for having spoken in public against the Union cause on May 1, 1863. His sentence was originally fixed at confinement for the remainder of the war, but Lincoln commuted the sentence and had Vallandigham put out beyond the Union lines in Tennessee.

Vallandigham petitioned the Supreme Court for certiorari and the Court held it had no jurisdiction to issue the writ. It stated its authority to issue the writ must come from the Constitution and the statutes and concluded that in neither place had the Court been given appellate jurisdiction over military commissions. These, the Court stated, were not "courts" within the meaning of the 14th section of the Judiciary Act of 1789.

Said the Court:

Whatever may be the force of Vallandigham's protest, that he was not triable by a court of military commission, it is certain that his petition cannot be brought within the 14th section of the act; and, further, that the court cannot, without disregarding its frequent decisions and interpretation of the Constitution in respect to its judicial power, originate a writ of certiorari to review or pronounce any opinion upon the proceedings of a military commission. It was natural, before the sections of the 3d article of the Constitution had been fully considered in connection with the legislation of Congress, giving to the courts of the United States power to issue writs of scire facias, habeas corpus, and all other writs not specially provided for by statute, which might be necessary for the exercise of their respective jurisdiction, that by some members of the profession it should have been thought, and some of the early judges of the Supreme Court also, that the 14th section of the Act of 24th September, 1789, gave to this court a right to originate processes of habeas corpus ad subjiciendum, writs of certiorari to review the proceedings of the inferior courts as a matter of original jurisdiction, without being in any way restricted by the constitutional limitation, that in all cases affecting ambassadors, other public ministers and consuls, and those in which a

2 Black 670-671. It should be noted that while the President's actions may mark a recognition of de facto war enabling him to perform his duty to suppress insurrection or oppose undeclared war, the President by his proclamation of the end of hostilities cannot affect the exercise of the war power by the Congress. Woods v. Cloyd W. Miller Co., 333 U. S. 138; 1947.

Ex parte Vallandigham, 1 Wall. 243; 1863. Ex parte Milligan, 4 Wall. 2; 1866.