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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 buman 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.

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 epithets.

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 yieldicg 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

I 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


officers by reason of any act done by them pending the suspension of the writ, and in pursuance of the law authorizing or providing for such suspension. But congress may adopt either of these means, as they may deem best. The constitution commits the choice of means to them, and their decision in that respect is conclusive. In England, as I am advised, it has always been the practice to pass indemnifying acts to protect the executive officers from actions for damages on occasion of suspending the habeas corpus act. 1 Wend. Black., 137n.

$ 681. — but it is held further, that an act suspending the privilege of the writ of habeas corpus is a protection against actions for illegal arrests, without further legislation.

But I am inclined to put the decision of this question upon higher and simpler grounds. It appears to me that these acts of congress are merely declaratory of the law as it resulted from the passage of the act suspending the privilege of the writ, and therefore necessarily constitutional. The suspension being the virtual authorization of arrests without the ordinary legal cause or warrant, it follows that such arrests, pending the suspension, and when made in obedience to the order or authority of the officer to whom that power is committed, are practically legal. They are made in pursuance of law — the law suspending the privilege of the writ. The municipal law declares in advance that homicide is justifiable when committed by an officer in obedience to the judgment of a competent court. In the absence of such a statute provision, what court would hold that such a homicide was illegal and criminal. It seems to result from the nature of things, that what the law commands or permits, so far as the law is concerned, is legal and justifiable.

It only remains to determine whether the defendants are within the provisions of the indemgifying acts. If they are, judgment must be given in bar of the action, and if not, it must go against them for the damages found.

Section 4 of the act of March 3, 1863, makes any order or authority of the president, made at any time during the existence of the present rebellion, a defense to any action for arrest and imprisonment made under and by virtue of such order.

In the case at bar no authority or order of the president is shown for the imprisonment of the plaintiff. It is the order or authority of the president which the act makes a defense to the action. Such order or authority cannot be presumed, but must be proved.

Counsel for the defendants seek to invoke the proclamation of September 24, 1862 (13 Stat., 735), in aid of the defendants in this respect. It may be admitted generally that a proclamation by the president is an order or authority to all whom it may concern or be addressed. Is this proclamation within the act of March 3, 1863?

That act declares that “any order of the president term during the existence of the present rebellion shall be a defense,” etc. Does this include orders made during the existence of the rebellion — as the proclamation of September 24, 1862 — but prior to the date of its enactment? It must be admitted that the language of the statute, taken literally, is broad enough for that purpose. But I do not think it was so intended or should be so construed, and for this reason: Congress was by that act first authorizing the suspension of the privilege of the writ of habeas corpus. It was only as an appropriate means to this end that congress could have made such orders a

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defense to an action for imprisonment. Where an act of congress is equally susceptible of two constructions, the court is bound to adopt that one which will make the act harmonize with the constitution.

$ 682. The president has no authority to suspend the privilege of the writ of habeas corpus except as authorized and directed by congress, and hence the proclamation of September 24, 1862, was void.

But, if I am mistaken in this, there is another answer to the proposition, that the proclamation is a defense to the action. That proclamation professes to suspend the writ of habeas corpus and to declare martial law. The expression martial law may be passed over as merely cumulative.

It means nothing but the absence of law. But the president of the United States has no authority to suspend the privilege of the writ except as authorized and directed by congress, and at the date of this proclamation no such authority existed. I do not propose to argue this question. There are some things too plain for argument, and one of these is that by the constitution of the United' States the president has not the power to suspend the privilege of the writ, and that congress has. The power of the president is executive power --- a power to execute the laws, but not to suspend them. The latter is a legislative function, and so far as it exists belongs naturally and by force of the constitution exclusively to congress. See opinion of Taney, C. J., in Ex parte Merryman, 9 Am. L. R., 524.

Whatever may have been the public necessities and motives which led the president to issue this proclamation, and I neither question nor impugn them, I cannot hold that it constitutes a defense to this action, because judicially I know that it was unauthorized and void.

Except as a means to secure the end and purpose of suspending the writ, congress itself could not have authorized the president to make this proclamation, nor do I think they could afterwards sanction it, so as to make it operate as a defense in a private action for an imprisonment made under it.

What is now said applies only to this action or similar ones. The proclamation of September 24, 1862, embraces many subjects and classes of persons. As to some of them, or many of them, the president may have been authorized, as commander-in-chief of the army and navy, to make the orders and directions therein. It declared that all rebels and insurgents, their aiders and abettors within the United States, and all persons discouraging volunteer enlistments, resisting militia drafts or guilty of any disloyal practice, affording aid and comfort to rebels against the authority of the United States, shall be “subject to martial law and liable to trial and punishment by courts-martial or military commissions.” “ The writ of habeas corpus is suspended in respect to all persons arrested, or who are now, or hereafter during the rebellion sball be, imprisoned in any fort, camp, arsenal, military prison or other place of confinement, by any military authority or by the sentence of any court-martial or military commission."

But if it were admitted that this proclamation was authorized by law and that it contained sufficient matter to justify the defendant McDowell in causing the arrest of the plaintiff as he did, still I do not think it would be a defense to this action, because long before this arrest it was superseded and practically revoked by the prociamation of September 15, 1863 — the one authorized by the act of March 3, 1863.


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$ 683. A party making an arrest was not protected by the proclamation of 1863, where the arrest was not made pursuant to an order by the president; and so, also, of the act of 1866.

The latter carefully defines the class of persons in relation to which the privilege of the writ was thereby suspended, and who might therefore be arrested and imprisoned without legal warrant or cause. In the absence of particular proof the only general order that the court can take judicial notice of is the proclamation of September 15, 1863. In this I do not find any order directing the arrest of the plaintiff, or that would justify his arrest. It is true that the proclamation suspends the writ as to “aiders and abettors of the enemy.” And it is apparent that this language was intended to apply to and include a class of persons whose conduct fell short of that “aid and comfort” to the enemy which the constitution declares to be treason, and which is legally punishable as such.

It is this class of persons that the suspension of the writ is intended to bring within the power of arbitrary arrest for the time being — persons who may be reasonably suspected of complicity with the rebellion or invasion, or who may be known to give it that moral aid and support which is often more effectual than a soldier in arms, particularly in a country governed by public opinion. But while the proclamation suspends the privilege of the writ as to such “aiders and abettors ” as a class, does it authorize or order any officer, military or civil, to arrest and imprison any particular person whom he may believe to be such an “aider or abettor," without the special and further order or authority of the president for so doing? I think not.

The language of the proclamation is that "in the judgment of the president the public safety does require that the privilege of the said writ shall be suspended throughout the United States in the cases where, by the authority of the president of the United States, military, naral and civil 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," etc. This proclamation is in the nature of a law — it has the force of a law and by it an important provision of the constitution is suspended. It should then be construed and treated as a law - a rule of action. It prescribes the limits within which the writ shall be suspended. As to any of the persons included within these limits, when in the custody of an officer of the United States by the authority of the president, the privilege of the writ is taken away. But I do not see how a person can be said to be in the custody of an officer, by authority of the president, unless the latter has directed or ordered the officer to take him into custody or to keep him in custody after having been arrested in any way. I admit that there is some room for argument upon the language of the proclamation as to whether the instrument itself is to be construed as a general order to every officer of the United States, military, naval and civil, high or low, great or small, to arrest and imprison whomsoever they may believe to be “aiders and abettors of the enemy,” or merely a declaration in advance, that whenever such a person is arrested or kept in custody by such officer, upon the order of the president - not the order of the subordinate — that as to him the privilege of the writ is suspended. But I think the latter construction altogether the most reasonable, and in accordance with the general spirit and purpose of the instrument. So upon general considerations outside of the language of the proclamation, there are many cogent

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