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diers are allowed to disobey the orders of their superiors upon a difference of opinion upon a question of law. Again, how often would this difference of opinion be a mere pretext to escape the demands of duty ? In the war of 1812 the constitutional scruples of the militia men, as to the power of the president to order them out of the United States, led to their refusing to march across the Canada line to the aid of the regulars when the latter were seriously engaged with the enemy, and thus a weli-planned enterprise failed, with serious loss to the American forces.
Nor is it necessary to the ends of justice that the subordinate or soldier should be responsible for obedience to the illegal order of a superior. In any case the party injured can have but one satisfaction, and that may and should be obtained from the really responsible party - the officer who gave the illegal
Ꮽ order. In civil life the rule is well settled otherwise, and a person committing an illegal act cannot justify his conduct upon the ground of a command from another. But the circumstances of the two cases are entirely different.
In the latter case the party giving the command and the one obeying it are equal in the eye of the law. The latter does not act upon compulsion. He is a free agent, and at liberty to exercise his judgment in the premises.
Personal responsibility should be commensurate with freedom of action – to do or refrain from doing. For acts done under what is deemed compulsion or duress the law holds no one liable. In contemplation of law the wife is under the power and authority of the husband. Therefore, for even criminal acts, when done in the presence of the latter, she is not held responsible. The law presumes that she acted under coercion of her husband and excuses her.
If the law excuses the wife on the presumption of coercion, for what reason should it refuse a like protection to the subordinate and soldier when acting in obedience to the command of his lawful superior? The latter may be said to act — particularly in time of war - under actual coercion. As a matter of abstract law it may be admitted that ultimately the law will justify a refusal to obey an illegal order. But this involves litigation and controversy, alike injurious to the best interests of the inferior and the efficiency of the public service. The certain vexation and annoyance, together with the risk of professional disgrace and punishment which usually attend the disobedience of orders by an inferior, may safely be deemed sufficient to constrain his judg. ment and action, and to excuse him for yielding obedience to those upon whom the law has devolved both the duty and responsibility of controlling his conduct in the premises. True, cases can be imagined where the order is so palpably atrocious as well as illegal that one must instinctively feel that it ought not to be obeyed by whomsoever given. But there is no rule without its exception. This one is practical and just, and the possibility of extreme cases ought not to prevent its recognition and application by the courts.
Between an order plainly legal and one palpably otherwise — particularly in time of war — there is a wide middle ground, where the ultimate legality and propriety of orders depends or may depend upon circumstances and conditions of which it cannot be expected that the inferior is informed or advised. In such cases justice to the subordinate demands, and the necessities and efficiency of the public service require, that the order of the superior should protect the inferior; leaving the responsibility to rest where it properly belongs, upon the officer who gave the command.
The all-important question in this case yet remains to be considered. The
defendants maintain that the acts complained of in this action are within the purview of the act of congress, entitled “ An act relating to habeas corpus, and regulating judicial proceedings in certain cases," approved March 3, 1863 (12 Stat., 755), and the act supplementary thereto, approved May 11, 1866 (14 Stat., 46), and that these acts furnish a complete defense to this action.
On the other hand, it is contended for the plaintiff that the acts of the defendants are not within the purview of these statutes, and that each of said statutes, in so far as they purport to indemnify or protect officers and soldiers for an arrest or imprisonment made during the suspension of the habeas corpus by the president in pursuance thereof, is unconstitutional and therefore void.
A question of greater importance, both to the government and the citizen to the maintenance of the authority of the people on the one hand and the preservation of individual liberty on the other — was probably never submitted to the determination of a court. Without further apology or preface, and without fear, favor or affection, I proceed to examine and decide it.
The constitution (art. I, § 9, sub. 2) declares: “The privilege of the writ of habeas corpus shall not be suspended unless when, in cases of rebellion or invasion, the public service may require it." And also (art. I, § 8, sub. 19) that “ The congress shall have 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."
$ 677. The act of 1863, authorizing the suspension of the writ of habeas corpus, is unconstitutional.
By the first section of the act of March 3, 1863, congress authorized the president, during the rebellion, “to suspend the privilege of the writ of habeas corpus in any case throughout the United States or any part thereof." The Ꮳ constitutionality of the section must be admitted without argument. The clause of the constitution first quoted is a recognition of this power in congress, as well as a limitation upon its exercise to the occasions “when,” by reason of the existence of “rebellion or invasion, the public service may require it.”
$ 678. Whether the public service” requires a suspension of the privilege of the writ of habeas corpus is confided to the judgment of congress; and congress may suspend the writ generally, or may limit the suspension to particular cases. They may suspend the writ directly, or commit the matter, within the properly described limits, to the judgment of the president. When the occasion arises — a rebellion or invasion — whether "the public
service " requires the suspension of the writ or not is confided to the judgment of congress, and their action in the premises is conclusive upon all courts and persons. Ex parte Merryman, 9 Am. L. R., 527; 2 Story, Com., $ 1342. In the exercise of this power congress may suspend the writ generally, or may limit the suspension to particular cases. They may suspend the writ directly, or commit the matter, within the properly described limits, to the judgment of the president.
Section 4 of the act of March 3, 1863, enacts: "That any order of the president, or under his authority, made at any time during the existence of the present rebellion, shall be a defense in all courts to any action or prosecution, civil or criminal, pending or to be commenced, for any search, seizure, arrest or imprisonment, made, done or committed, or acts omitted to be done, under
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 —"sball 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 wbich 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 wbo 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 froin 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 bim 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 тау 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.”
It is erident, 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 privile're 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