Sydney G. Fisher

“ But if an act were an offence against the law of nations it belonged to the jurisdiction of the army and its military tribunals. If this were not so, every soldier who killed an enemy in battle would be guilty of murder and would have violated the constitution, for he would have deprived a person of life without due process of law. So any one who holds a prisoner of war, is depriving him of liberty without due process of law. And if the army capture a spy and hang him, they are depriving him of life without due process of law, and also of the privilege of trial by jury. ”

“ He showed what is very evident, namely, that to suppose the constitution silent and infer from that the right of Congress to suspend was mere assertion and a begging of the question. More than that, it was contrary to the most fundamental principle of constitutional law. No powers can be assumed for any part of the government. Nothing is so well settled as the doctrine that Congress has only the powers which are expressly given by the constitution and such other instrumental and incidental powers as are necessary to carry the expressed powers into effect. ”

“ No law can be suspended except by the legislature. The writ of habeas corpus is a law; for it is created by act of Congress, and therefore Congress alone can suspend it. In England, Parliament, and not the Crown, suspends the writ, and the makers of our constitution would naturally have followed the English custom, or having it before their eyes would certainly not have made the American President more powerful over civil liberty than the English King. ”

“ If an American general in command of a district which included Ohio should undertake to govern the citizens of that state and to punish them for what he deemed to be crimes and offences, that would be martial law. Martial law is therefore the good pleasure of a soldier administered to the citizens of his district. It is the arbitrary will of one man; it overthrows all the civil law and of course suspends habeas corpus. Lincoln declared martial law in several parts of the country. If he had a right to declare it, habeas corpus was thereby suspended wherever such law extended. ”

“ In other words, America has a written constitution which cannot be changed by Congress, and England has an unwritten constitution which can be changed at the pleasure of Parliament. If there were in England some law higher than Parliament which said that habeas corpus could be suspended only in rebellion or invasion, and it could be shown that under this law it was the practice for Parliament alone to declare the fact of rebellion or invasion and the fact of public danger, then there might be an analogy. ”

“ From a political point of view, the great value of habeas corpus is that it protects citizens from a dangerous tendency which is generally found in those who exercise the powers of government. These rulers of men often want to rid themselves quickly of their personal enemies or of those whom they choose to consider the enemies of their country, and one of the easiest methods is to arrest on any sort of charge or suspicion, and keep the victim in confinement simply by not allowing him to be brought to trial. ”

“ The Declaration of Independence says that it was outrageous for the king to make the military superior to the civil power; and many of the state constitutions have said that the military shall never be superior to the civil power. Everything is against martial law, and yet whenever a president, king, or general is driven to extremities he will make use of it, and those who complain will complain in vain. He who declares martial law has already an army with which to enforce his decrees. ”

“ But when people speak of the writ of habeas corpus without more, they mean the great writ ad subjiciendum, the bulwark of liberty, the great writ of liberty, as it is called. It is the writ which is applied for when a man is supposed to be unjustly held in custody, and when it is issued and served, the person holding the prisoner must bring him before the judge and show cause for the detention. If the detention cannot be justified the prisoner will be discharged. ”

“ He is commander-in-chief of the army, navy and militia, and if the laws or the constitution are menaced by an invasion or rebellion, it surely belongs to him to decide the fact, to measure the danger and what the public safety requires. If it is his duty to execute the laws and defend the constitution he must have the right to determine when the facts exist which bring his duty into operation. The suspension of habeas corpus is most effective when used quickly in the beginning of an outbreak or conspiracy. Congress can never use it quickly and is often not in session. ”

“ The clause itself contains all the authority. If it had given some department the right to authorize suspension, the authorization might be a legislative act, but the right actually to suspend is executive. No legislative body can suspend the privilege by an act on the person to be affected, and they never attempt it. Parliament never actually suspends habeas corpus. They authorize the crown or ministry to do it as the occasion arises. That is all that Congress could do, namely, give effect to the action of the President or some one else, and that the constitution does already. ”

“ If the insurgents assail with an army, he may find it best to use the army against them. It they employ spies and emissaries, he may find it necessary to arrest and imprison them. Having thus arrested and by this right, he is not bound to obey a habeas corpus issued to him by a court. The departments of government are independent of each other. Each has its own sphere. The President's duties are political; those of the courts are judicial. If in time of a rebellion the President arrests a man, it is a political act, not within the domain of the courts, and they cannot interfere with it. ”

“ By the constitution the judicial power extends to questions of personal liberty, and its exercise in that respect cannot be interfered with by Congress.
Congress, having the right to establish the tribunals, must give to them such an organization as will enable them to exercise completely the judicial power created by the constitution. A tribunal is not constituted unless it is endued with the active powers necessary to the exercise of its jurisdiction. ”

“ When the war was over the Supreme Court decided, in Milligan's case, [22] after the most solemn argument and deep consideration, that the President could not declare martial law in any district not invaded by the enemy and where the judges were on the bench and the courts of law in operation. Martial law exists where there is a battle. It exists in a community where war exists and the courts and civil authorities are overthrown. A commander at the head of his army may impose it on states in rebellion, to cripple their resources and quell the insurrection. ”

“ You are engaged in suppressing an insurrection against the laws of the United States. If at any point on or in the vicinity of any military line which is now or which shall he used between the City of Philadelphia and the City of Washington, you find resistance which renders it necessary to suspend the writ of habeas corpus for the public safety, you personally or through the officer in command, at the point at which resistance occurs, are authorized to suspend the writ. ”

“ No one disputed that people who injured the governments military force in this way could be seized by the army wherever found. But suppose a man who had never been in Confederate territory, who had never joined the Confederacy and who had no connection with it except by sympathy, should, in a loyal Northern state of which he was a citizen, persuade soldiers to desert, combine with others to liberate prisoners, to resist the draft, and to seize the arms and munitions in the arsenals, what name was to be given to this species of traitor? ”

“ The American and English constitutions are very different. By the English constitution, Parliament, being omnipotent, may suspend the privilege of habeas corpus at any time, even in time of profound peace, and has in our own day suspended it during labor riots. ”

“ If it could be implied from the power to call out the militia, or from any of the other war powers, it could be implied still more easily from the power to punish counterfeiting, for it would certainly be very useful against that offence. ”

“ There were men in Baltimore, Philadelphia and New York, in the cities of the West, in the departments at Washington, and in the White House itself who were ready and eager to hand over the government's property and strongholds to the rebels, and had laid their plans with that intent. Their schemes must be forestalled, their conspiracy killed before it blossomed. ”

“ Judge Hall of the United States district court issued a habeas corpus for his release, and Jackson, being determined to strike at the root of the matter, arrested the judge. Afterwards, when the judge got back into his court, he called Jackson before him and fined him a thousand dollars for contempt. Jackson promptly paid the fine, and after many years it was refunded to him by act of Congress. In passing the act some of Jackson's friends justified him on the ground of necessity which, they maintained, always decided the right or wrong of martial law. ”

“ Undoubtedly when the Union armies captured a soldier of the Confederacy or an inhabitant of the Confederacy who was aiding the rebellion, such person was a prisoner of war, and could be held in confinement without a trial until the war was over, or he was exchanged. ”

“ After the emergency is past, if he has been successful and has not been cruel or reckless in its use, he will, in all probability, be forgiven; and the American people are among those most likely to forgive. ”

“ The committee on style probably placed the clause in the ninth section of the first article because that section is restrictive throughout. Most of the paragraphs restrain Congress, but one of them restrains the executive department, and another restrains all persons who hold an office of trust or profit under the United States. Position in the ninth section is therefore of no avail to give authority to Congress. Nor can position in the first article be used for such a purpose. The first article is not confined to Congress. ”