and by virtue of said order, or under color of any law of congress; and such defense may be made by special plea or under the general issue."

On September 15, 1863 (13 Stat., 734), the president, in pursuance of the authority conferred upon him by section 1 of the act of March 3, 1863, issued a proclamation wherein it was declared that "the public safety does require that the privilege of said writ "— of habeas corpus-"shall now be suspended throughout the United States, in the cases where, by the authority of the president of the United States, military, naval and civic officers of the United States, or any of them, hold persons under their command, or in their custody, either as prisoners of war, spies or aiders or abettors of the enemy, or officers, soldiers or seamen enrolled or drafted or mustered or enlisted in or belonging to the land or naval forces of the United States, or as deserters therefrom, or otherwise amenable to military law or the rules and articles of war, or the rules or regulations prescribed for the military or naval services by authority of the president of the United States, or for resisting a draft, or for any other offense against the military or naval service.

"Now, therefore, I, Abraham Lincoln, president of the United States, do hereby proclaim and make known to all whom it may concern that the privilege of the writ of habeas corpus is suspended throughout the United States, in the several cases before mentioned, and that this suspension will continue throughout the duration of the said rebellion, or until this proclamation shall, by a subsequent one to be issued by the president of the United States, be modified or revoked."

Section 1 of the act of May 11, 1866 (14 Stat., 46), enacts: "That any search, seizure, arrest or imprisonment made, or any acts done or omitted to be done, during the said rebellion, by any officer or person, under and by virtue of any order, written or verbal, general or special, issued by the president or secretary of war, or by any military officer of the United States holding the command of the department, district or place within which such seizure, search, arrest or imprisonment was made, done or committed, or any acts were so done, or omitted to be done, either by the person or officer to whom the order was addressed, or for whom it was intended, or by any other person aiding or assisting him therein, shall be held, and are hereby declared to come within the purview of the act to which this is amendatory, and within the purview of the fourth section of the said act of March 3, 1863, for all the purposes

of defense provided therein. But no such order shall, by force of this act, or the act to which this is an amendment, be a defense to any suit or action for any act done or omitted to be done after the passage of this act."

Admitting the constitutional power of congress to suspend the privilege of the writ of habeas corpus, as it was done by the act of March 3, 1863, can it in any case go further, and pass acts to indemnify or protect persons who, without ordinary legal cause or warrant, have been instrumental in imprisoning others during such suspension?

Before answering this question it is well to consider what is the purpose and practical effect of suspending the privilege of the writ. Personal liberty, unless forfeited by due course of law, is the right of every citizen of the republic. The writ of habeas corpus is the remedy by which a party is enabled to obtain deliverance from a false imprisonment. Ordinarily, every one imprisoned without legal cause or warrant is entitled to this remedy this privilege. The power to suspend this privilege includes, and is in fact identical with, the power to take away or withhold this remedy from the individual during

the period of such suspension. The suspension of the privilege of the writ and the denial of the remedy for false imprisonment are identical in effect, if not in terms. It follows that the power of congress to suspend the privilege of the writ of habeas corpus is equivalent to the power to take away from all persons, during the suspension, the right to the ordinary and only remedy for deliverance from false imprisonment. This is the effect of the suspension. What is the purpose of it? the object to be accomplished by it? The occasions and necessity to which the constitution limits the power of suspension clearly denote the purpose and end for which the suspension is made. The occasion is the existence of "rebellion or invasion," and the necessity is the fact that the "public service"-safety-requires it. The public safety is the end to be secured or obtained by the suspension. The danger to the public safety arises from the "rebellion or invasion;" and the writ is suspended to enable the executive to prevent harm to the republic from those who are or may be suspected of assisting the cause of the "rebellion or invasion." The suspension enables the executive, without interference from the courts or the law, to arrest and imprison persons against whom no legal crime can be proved, but who may, nevertheless, be effectively engaged in fomenting the rebellion or inviting the invasion, to the imminent danger of the public safety.

Plainly expressed, the suspension of the privilege of the writ is an express permission and direction from congress to the executive to arrest and imprison all persons, for the time being, whom he has reason to believe or suspect of intention or conduct, in relation to the "rebellion or invasion," which is or may be dangerous to the common weal.

That, at the time of the formation and adoption of the constitution, such was the understanding, as to the purpose and practical effect of suspending the privilege of the writ, is apparent from the elementary common-law treatises of the time. Blackstone, in his Commentaries (b. 1, p. 136), says: "Of great importance to the public is this personal liberty; for if once it were left in the power of any, the highest, magistrate to imprison arbitrarily whoever he or his officers thought proper (as in France it is daily practiced by the crown), there would soon be an end of all other rights and immunities. Some have thought that unjust attacks, even upon life or property, at the arbitrary will of the magistrate, are less dangerous to the commonwealth than such as are made upon the personal liberty of the subject. To bereave a man of life, or by violence to confiscate his estate, without accusation or trial, would be so gross and notorious an act of despotism as must at once convey the alarm of tyranny throughout the whole kingdom; but confinement of the person by secretly hurrying him to jail, where his sufferings are unknown or forgotten, is a less public, a less striking, and therefore a more dangerous, engine of arbitrary government. And yet sometimes, when the state is in great danger, even this be a necessary measure. But the happiness of our constitution is that it is not left to the executive power to determine when the danger of the state is so great as to render this measure expedient; for it is the parliament only, or legislative power, that, whenever it sees proper, can authorize the crown, by suspending the habeas corpus act for a short and limited term, to imprison suspected persons without giving any reason for so doing, as the senate of Rome was wont to have recourse to a dictator, a magistrate of absolute authority, when they judged the republic in any imminent danger. In like manner, this experiment ought only to be tried in cases of extreme emergency; and in these the nation parts with its liberty for a while in order to preserve it forever."

may

It is evident, from the language of this passage, that the commentator was not disposed to undervalue the importance of personal liberty, nor to overstate the purpose and practical effect of the suspension of the habeas corpus

act.

At the era of the constitution this was the acknowledged doctrine of the common law concerning personal liberty and the suspension of the privilege of the writ, whereby that liberty was left at the discretion of the government for the time being. The provision in our constitution was adopted with that understanding of its effect. It in no wise changed the common law as laid down by Blackstone, except that, instead of leaving congress at liberty to suspend the privilege "whenever it sees proper," it limited and confined the exercise of such power to times of "rebellion and invasion."

This is also evident from the nature of things. If the suspension of the privilege of the writ is not intended to authorize and permit arrests without the ordinary legal cause or warrant, what is it intended for? The very limitation in the constitution upon the power of suspension is strong evidence that it was not understood to be a mere form, but something of serious import and effect. An arrest upon an oath and warrant describing an offense defined by law can be made and maintained with the privilege of the writ in force. Unless the suspension changes the law, so to speak, for the time being, in regard to arrests and imprisonments, I am at a loss to conceive how the republic can be thereby preserved from imminent danger or the public safety conserved. The powers granted to congress must be construed and applied with reference to the purposes for which the constitution was made. It is not a mere abstraction to sharpen men's wits upon, but a practical scheme of a government having all necessary power to maintain its existence and authority during peace and war, rebellion or invasion. As was well said long ago, "the instrument was not intended as a thesis for the logician to exercise his ingenuity on. It ought to be construed with plain, good sense. The uniform sense of congress and the country furnishes better evidence of the true interpretation of the constitution than the most refined and subtle arguments."

§ 679. The object of the suspension of the writ of habeas corpus may be attained by congress by the passage of any necessary and proper laws not expressly prohibited.

The purpose of the express power to suspend the privilege of the writ of habeas corpus-the object to be obtained - being to authorize, for the time being, the imprisonment of persons "without giving any reason for so doing," and without legal cause or warrant therefor, as a means of preserving the republic from imminent danger, it follows as a necessary consequence that, under the clause giving power "to make all laws which shall be necessary and proper for carrying into execution" the power of suspension, congress may pass any law necessary and proper to secure or obtain this end, unless expressly prohibited therefrom by the constitution itself.

§ 680. Without further legislation than the mere suspension of the privilege of the writ of habeas corpus, every person illegally imprisoned might maintain an action for damages; and for the purpose of rendering the suspension effective, congress may provide for indemnifying or protecting officers acting under the law.

Without further legislation than the suspension of the privilege of the writ, every person imprisoned without legal cause or warrant might maintain an action for damages therefor. To enable the power of suspension to be exe

cuted the purpose of it to be accomplished-it becomes necessary to provide in some way for the protection of the officers and persons required to make arrests and imprisonments. To accomplish this, congress has passed the indemnity clauses in the acts of March 3, 1863, and May 11, 1866, being section 4 of the one act and section 1 of the other. Were these provisions in these acts necessary and proper means to secure the end in question? Let the supreme court answer this question. In McCullough v. State of Maryland, 4 Wheat., 415, Chief Justice Marshall says: "The subject is the execution of those great powers on which the welfare of a nation essentially depends. It must have been the intention of those who gave these powers to insure, as far as human prudence could insure, their beneficial execution. This could not be done by confiding the choice of means to such narrow limits as not to leave it in the power of congress to adopt any which might be appropriate, and which were conducive to the end. This provision is made in a constitution intended to endure for ages to come, and consequently to be adapted to the various crises of human affairs. To have prescribed the means by which government should, in all future time, execute its powers, would have been to change entirely the character of the instrument, and give it the properties of a legal code. It would have been an unwise attempt to provide, by immutable rules, for exigencies which, if foreseen at all, must have been seen dimly, and which can best be provided for as they occur. To have declared that the best means shall not be used, but those alone without which the power given would be nugatory, would have been to deprive the legislature of the capacity to avail itself of experience, to exercise its reason, and to accommodate its legislation to circumstances." And again:

"We admit, as all must admit, that the powers of the government are limited, and that its limits are not to be transcended. But we think the sound construction of the constitution must allow to the national legislature that discretion, with respect to the means by which the powers it confers are to be carried into execution, which will enable that body to perform the high duties assigned to it in the manner most beneficial to the people. Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional."

It is not necessary to repeat what has been said to show the legitimacy of the end proposed by congress in this legislation. Waiving the question of the propriety of the means for the moment, if this end is not legitimate, then the clause in the constitution authorizing the suspension of the privilege of the writ is merely nugatory, and the power might as well have been absolutely denied.

As has been shown, the power to suspend the habeas corpus in the cases specified, being practically the power to authorize and provide for the imprisonment of persons for the time being without legal cause or warrant, and "without giving any reason for so doing," it must follow that, to secure this end, congress must have power to protect or indemnify the officers and persons whom, mediately or immediately, it thus requires to do any act concerning such imprisonments.

6

The argument of the plaintiff may be briefly stated thus: "The suspension of the writ creates a despotism,' and therefore the end is not legitimate." Let it be admitted, for the purpose of argument, that the suspension does not "create a despotism." What then? Does the conclusion follow? By no

means; because, as we have seen, the constitution expressly authorizes the suspension, and history teaches, and so the fathers understood it, that such suspension was allowed, so as to authorize and permit imprisonment without the ordinary cause or process for the safety of the republic.

Such an argument might have been proper as against the adoption of the constitution by the people, but in a court which must recognize that instrument the suspending clause inclusive as the supreme law of the land, it becomes a mere waste of opprobrious epithèts.

Nor does this power as now construed merit such epithets. A despotism in any sense or form always implies the idea of irresponsible as well as unlimited power. The people of the United States made the constitution for themselves, and can change it when they will, to suit their altered condition or change of opinions. While yielding obedience to their government, exercising the powers conferred by that instrument, whether ordinary or extraordinary, they cannot be said to be living under a despotism. When their representatives in congress assembled suspended the privilege of the writ of habeas corpus for the public safety they only exercised a delegated power for the proper use of which they are responsible to their constituents at short intervals. To call such a state of things a despotism is an abuse of language and a confusion of ideas. At most, it is but a voluntary and temporary surrender by the people of the ordinary safeguards of personal liberty in an "extreme emergency,' whereby, as Blackstone says, "the nation parts with its liberty for a while in order to preserve it forever."

As a means to secure the purpose and practical end of suspending the privilege of this writ, does the constitution anywhere prohibit congress from passing the laws in question? He who asserts that it does must show it. I have been unable to find such a provision, and the counsel for the plaintiff, notwithstanding his learning and zeal, has failed to point it out.

It is not enough to show that the constitution prohibits unreasonable searches and seizures, and the issuing of warrants without probable cause, supported by oath or affirmation. These provisions of the constitution are qualified by the express power to suspend the privilege of the writ. The former furnish the general rule, while the latter takes effect in the excepted case of public danger in time of rebellion or invasion.

But these indemnity laws do not conflict with the constitution in any of these provisions. They do not authorize any imprisonment with or without cause, but are enacted to protect an officer or person from an action for damages on account of acts done in the defense of the public safety during the suspension of the writ — for imprisonments already made in pursuance of a law authorized by the constitution.

It is admitted that the legislature of a state, by virtue of its general legislative power, unless specially prohibited therefrom, could pass laws barring the right of any of its citizens to maintain an action for an alleged assault and battery or false imprisonment. In the choice of means to carry out an express power, as the suspension of the writ, congress may also exercise its discretion, and adopt any measure not specially prohibited by the constitution. These means are necessarily the passage of laws, and one of the most appropriate for the purpose is to provide that the officer shall not be liable to an action. Another, and probably the only other, is to provide by law for the payment out of the public treasury of all judgments that may be recovered against