The power to suspend being thus conceded, the practical question then arises, to which department of the government is its exercise intrusted. The venerable Horace Binney, in two essays published in the years 1862, 1863, has, with a vast amount of research and learning, and by a course of argument from which it is difficult to escape, maintained the propositions that suspending the privilege of the writ of habeas corpus is a civil executive act; that the power to suspend belongs to the President in his civil capacity; and that no fiat of the legislature is necessary in order to make the act legal. The opinion is almost universal, however, that Congress must take the initiative, and pass a statute which either directly produces the effect of suspension, or which authorizes the President to withdraw the privilege of the writ. Congress has adopted this view, and their action seems to have been sanctioned by the Supreme Court.

§ 708. Assuming, therefore, that during a rebellion or an invasion, the Congress may, if the public safety shall require it, suspend, or authorize to be suspended, the privilege of the writ of habeas corpus, the most important inquiry is immediately suggested, What is included within this proceeding? what particular measures may the legislature or the executive adopt by virtue thereof? Is the clause in the Constitution a permission for Congress or President to disregard, during the contemplated emergency, all those safeguards which the Bill of Rights has thrown around life, liberty, and property? If this be so, a power most dangerous, and directly opposed to the general spirit of the organic law, was conferred by language which effectually concealed the greatness of the gift. We cannot suppose that the statesmen who drafted or the people who accepted the Constitution, intended to grant such an authority to their rulers. Horace Binney, in a third essay upon this subject, has investigated the meaning and extent of the power, and has shown the limits of its operation, by an argument which amounts to an absolute demonstration. His conclusions I adopt and briefly state without any reference to the sources and precedents whence they are drawn. Suspen1 The Privilege of the Writ of Habeas Corpus: Part Third, Phila. 1865.

sion of the privilege of the writ of habeas corpus, or of the writ, or of the Habeas Corpus Act- three expressions for the same thing had a settled and well known meaning in the English law, with which the framers of the Constitution are to be taken as familiar. It "did not recall to any one any other legal power, proceeding, or effect, than that of arresting persons suspected of treasonable designs, committing them to prison, and uplifting beyond their reach the writ of habeas corpus as a means of relief." That which the British government can do without any limitations, the Constitution permits to be done only under the conditions of invasion or rebellion. The suspension of the writ does not in the least affect the authority over arrests; the power to suspend does not enable Congress to allow or the Executive to make arrests without legal cause, or in an arbitrary and irregular manner; but merely enables the government to detain a prisoner arrested for good cause, for an indefinite time without trial or bail. Suspending the writ does not legalize seizures otherwise arbitrary, nor give any greater authority to the Executive than that of detaining suspected persons in custody whom it would else be obliged to bring to a speedy trial or to release on bail. These conclusions as to the power of Congress and the President derived from the habeas corpus clause of Article I., Section IX., reached by Mr. Binney through his masterly analysis of English precedents, have received the approval of the Supreme Court of the United States; in fact they were adopted as the very ground of deciding one branch of the great case Ex parte Milligan.1 Mr. Justice Davis delivering the judgment of the court said: "The suspension of the writ does not authorize the arrest of any one, but simply denies to one arrested the privilege of this writ in order to obtain his liberty." In a word, Congress and President derive no new affirmative power from the habeas corpus clause, but only a negative power of passive resistance.

§ 709. But may not the President or Congress derive some additional powers during war, from a source entirely independent of the habeas corpus clause? Do the express prohibitions 14 Wall. 2, 115.

of the Constitution still restrain them when operating with the military arm? One answer to these inquiries is plain; its correctness must be acknowledged at once. If either the President or Congress may thus acquire an excess of powers during war, it must necessarily be by virtue of some special function given by the Constitution, which becomes active only at that time, and whose nature is so peculiar that its perfect efficiency is incompatible with any express restraints upon its operation; this incompatibility must be so great and the function itself so important, that an exception in regard to it is to be considered as necessarily implied in the Bill of Rights. Does any department of the government possess such a function which may at times displace some of the safeguards that protect life, liberty, and property?

§ 710. I answer unhesitatingly, Congress does not. The position maintained by Mr. Chief Justice Chase and other dissenting judges in Ex parte Milligan, that Congress may, under certain circumstances, provide for martial law, military arrests and trials of civilians, seems to be the most utterly indefensible of any. It is universally conceded that the legislature cannot resort to these violent measures in peace. But in fact, Congress possesses no function whatever that can be taken as the basis of its authority to enforce martial law in war, which would not be an equally strong support for the exercise of that authority in peace. Is it the function of establishing inferior courts, or of raising armies and navies, or of governing the forces? All these might be called into full action in time of peace. The power to make rules concerning captures plainly does not involve the consequences under consideration, while that of declaring war is exhausted by the very act of declaration. Indeed, it is only by imputing to Congress an attribute not granted to it that of waging war —that its authority to enforce martial law can receive even a semblance of support.

§ 711. Is the President clothed with the function? If so, it cannot be in his capacity of executive magistrate, for as such he must execute laws, and he, to an equal extent with 1 4 Wall. 2.

the law-makers, is bound by the inhibitions of the first eight Amendments. If the President may resort to martial law under any circumstances, it cannot be as a part of either the judicial or the legislative systems of the United States, but must be as a special means of waging war, of carrying out the particular duties which devolve upon him as Commander-inChief. If military arrests, trials, and punishments employed against civilians are ever lawful, they are so not because they are a kind of judicial proceeding supplementing the ordinary methods of peace, but because they are a species of hostilities directed against individuals who have placed themselves in the position of enemies, and have therefore deprived themselves of all the safeguards which the Constitution throws about the lives, liberty and property of citizens.

§ 712. Does such a power exist? There are three subjects bearing related names, but having no elements in common, and care should be taken to distinguish them. "Military Law" is the code of rules for the government of the army and navy; it is a department of the municipal law applicable to a small portion of the people engaged in a special service; it is enacted by Congress and executed by the President; civilians are, by the very terms of the Constitution, exempted from its operation. "Military Government" is the authority by which a commander governs a conquered district, when the local institutions have been overthrown, and the local rulers displaced, and before Congress has had an opportunity to act under its power to dispose of captures, or to govern territories. This authority in fact belongs to the President; and it assumes the war to be still raging, and the final status of the conquered province to be undetermined, so that the apparent exercise of civil functions is really a measure of hostility. "Martial Law" is something very different. It acts, if at all, within the limits of the country, against civilians who have not openly enrolled themselves as belligerents among the forces of an invading, or a rebellious enemy; if set in motion at all, it must be as a concomitant of war. It is thus described by a late writer: Martial Law is, in short, the suspension of all

1 Finlason on Mar. Law, p. 107.

law but the will of the military commanders entrusted with its execution, to be exercised according to their judgment, the exigencies of the moment, and the usages of the service, with no fixed or settled rules or laws, no definite practice, and not bound even by the rules of the military law." If this description bears any resemblance to the fact, every American citizen must hope that neither President nor Congress can set such an engine of abuse and oppression at work within the limits of the United States.

713. A most elaborate and exhaustive examination of the power to enforce martial law in Great Britain was lately made by Lord Chief Justice Cockburn. After a review of the precedents ancient and modern, set forth in the wonderfully clear and orderly manner for which he is so preëminently distinguished, the Chief Justice reaches the conclusion that the Crown has no authority by virtue of its prerogative to enforce martial law in any part of the realm where the laws of England prevail; but admits that Parliament may call it into being and operation. A solemn judgment of the Supreme Court in Ex parte Milligan 2 has denied the lawfulness of martial law within the United States, except in districts actually occupied by the opposing forces, which are the very theatre of hostilities, and in which the civil courts are, for the time being, completely displaced. The extent of this exception will appear in the following extract from the prevailing opinion: 3 "It follows from what has been said on this subject, that there are occasions when martial rule can properly be applied. If, in foreign invasion or civil war, the courts are actually closed, and it is impossible to administer criminal justice according to law, then, on the theatre of active military operations, where war really prevails, there is a necessity to furnish a substitute for the civil authority thus overthrown, to preserve the safety of the army and society; and as no power is left but the military, it is allowed to govern by martial rule until the laws can have their free course. As necessity creates the rule, so it limits its duration; for if this government is continued after 1 Charge of the Lord Chief Justice of England, in the case of the Queen v. Nelson and Brand. London, 1867.

2 4 Wall. 2.

* Ibid. 127.