function of commanding those forces; no particular statutes passed under the former class of attributes, can interfere with the President in his exercise of the latter. Even the general clause of Article I. Section VIII. § 18, which authorizes Congress to make all laws necessary and proper to carry into execution the powers conferred upon any department of the government, cannot permit the Congress to assume the capacities and duties of Commander-in-Chief.

§ 704. In fact, the attributes of the legislature in respect to military matters, are essentially the same in peace and in war. The power to make rules for the disposition of captures becomes practically efficient in every war; that to suspend the privilege of the writ of habeas corpus can exist only during an internal war. With these exceptions, Congress possesses all the occasions for its action, and may pass all kinds and classes of laws, whether the country be at peace or engaged in war. Without doubt there will be a greater necessity for raising troops, borrowing money, furnishing supplies, and the like, during the existence of actual hostilities than during seasons of tranquillity; and the people will then endure particular measures which they would not tolerate for a moment at a time when the emergency was not so great. But no authority can generally arise from a state of belligerency, for Congress to pass entirely new classes of statutes which it could not constitutionally enact before. Even the rules for the disposition of captures could all be elaborated before any hostilities commenced, and before any captures were actually made.

§ 705. In time of peace, therefore, the President's functions, as far as they relate to the army and navy, are of two separate and entirely distinct characters, and to avoid confusion we must carefully distinguish between these attributes. In respect to certain classes of measures he acts entirely in his general capacity of Executive, and takes care that the laws are faithfully executed. Congress, under its supreme authority, passes laws which concern the military alone, and these the President must enforce with the same diligence, and by virtue of the same function, that he carries out those legislative mandates which apply alone to civilians; he is not then oper

ating as commander, but as a supreme civil magistrate. But as Commander-in-Chief, he calls other attributes into action, for which the legislature has furnished the occasion, but which do not consist in executing any positive laws. I repeat, it is important that these two classes of powers and duties should be kept distinct. Under its authority to raise armies, maintain navies, furnish supplies, and the like, Congress may direct the manner in which the President's power shall be exercised, for he will be, in fact, but executing its commands. Thus it may determine how many men shall be enlisted in each branch of the service, or what and how many armed vessels shall be constructed. As Congress is to make all appropriations, it may declare the specific purpose for which money is to be used; what forts shall be erected, and their cost; what ships built, their character and cost; what kind of arms purchased or manufactured, and the cost. Instances of this sort might be multiplied. In all these cases great or little discretion may be left to the Executive and his subordinates, as the legislature deems best. Congress is authorized to make rules for the government of the land and naval forces: it may therefore arrange and classify these forces; fix upon the plan of organization; determine upon the number, duties, and pay of officers; define military offences and allot the punishment; provide for the creation, jurisdiction, and procedure of courts-martial, and for carrying out their sentences. The President's duties in respect to these various subjects may thus be clearly defined and controlled by the legislature. But in time of peace he has an independent function. He commands the army and navy; Congress does not. He may make all dispositions of troops and officers, stationing them now at this post, now at that; he may send out naval vessels to such parts of the world as he pleases; he may distribute the arms, ammunition, and supplies in such quantities and at such arsenals and depositories as he deems best. All this is a work of ordinary routine in time of peace, and is probably left in fact to the Secretaries of War and of the Navy, and to military officers high in command.

706. When actual hostilities have commenced, either through a formal declaration made by Congress, or a belliger

ent attack made by a foreign government which the President must repel by force, another branch of his function as Commander-in-Chief comes into play. He wages war, Congress does not. The legislature may, it is true, control the course of hostilities in an indirect manner, for it must bestow all the military means and instruments; but it cannot interfere in any direct manner with the actual belligerent operations. Wherever be the theatre of the warlike movements, whether at home or abroad, whether on land or on the sea, whether there be an invasion or a rebellion, the President as Commander-inChief must conduct those movements; he possesses the sole authority and is clothed with the sole responsibility. In theory he plans all campaigns, establishes all blockades and sieges, directs all marches, fights all battles.

707. We will now inquire what particular powers may be wielded by the government, or by some department thereof, in time of war, which cannot be exercised in time of peace. Article I. Section IX. § 2 is in these words: "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." It has been asserted that this clause confers no authority to suspend the privilege of the writ of habeas corpus and that it is entirely restrictive in its meaning and operation. This construction is arbitrary and forced to the last degree. The plain import of the language, which has been adopted by Congress, the President, and the Courts, is that in an internal war, whether of invasion by a foreign enemy or of rebellion, the privilege of the writ of habeas corpus may be suspended when the public safety shall demand such an extreme measure. 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 argu ment from which it is difficult to escape, maintained the pro positions 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.1 His conclusions I adopt and briefly state without any reference to the sources and precedents whence they are drawn. Suspension 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 govern

The Privilege of the Writ of Habeas Corpus: Part Third, Phila. 1865.

ment 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 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 func

14 Wallace's R. 2, 115.