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the English rule existed. Sir Frederick Pollock, discussing the proper law of the subject with reference to the arrest of one Marais, upholds the judgment of the Judicial Committee of the Privy Council (A. C. 109, 1902) in which that court declined to hold that the absence of open disorder, and the undisturbed operation of the courts furnished conclusive evidence that martial law was unjustified.23

§ 735. Mitchell v. Clark Considered.

In 1863 Congress passed an act for the protection of military persons against suits for certain acts done by them during the war without authority of law. The fourth section of this law read:

"And be it further enacted, that any order of the President or under his authority, made at any time during the existence of the present rebellion, shall be a defence 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 such order, or under color of any law of Congress, and such defence may be made by special plea, or under the general issue." 24

There would seem to be little question as to the unconstitutionality of this law, should it be interpreted in as wide a sense as its language permits; for giving to its words the full meaning which they are capable of bearing, they assert the power of the legislature to justify acts of military officers without reference to their necessity, in other words, to substitute a legislative fiat for a justification in fact.

The validity of this act was questioned in the case of Mitchell v. Clark.25 In this case the plaintiff sued the defendant for rent due on a lease of certain warehouses. The defendant, admitting the lease, set up that the rent in question had been paid by him,

23 Law Quarterly Review, XVIII, 152. For an opposite view, see Edinburgh Review, January, 1902.

24 By act of May 11, 1866, this provision was given still wider application. 25 110 U. S. 633; 4 Sup. Ct. Rep. 170; 28 L. ed. 279.

under military orders, to certain military officials, and by them confiscated for the use of the United States. Whether or not this payment by the defendant constituted a payment of the rent due of course depended upon the lawfulness of its confiscation by the military authorities, which in turn depended upon the validity of the act of Congress of 1863. In upholding the potency of the act to legitimize the confiscation, the Supreme Court said: "That an act passed after the event, which in effect ratifies what has been done and declares that no suit shall be sustained against the party acting under color of authority, is valid, so far as Congress could have conferred such authority before, admits of no reasonable doubt."

There can be no objection to this statement that Congress, after an event, has the power, by an act of indemnity, to declare that no suit shall be based upon an act which it might have at the time authorized. This, it has been claimed, is all that that case decided.26 It would seem to the author, however, that a broader and more questionable doctrine was necessarily involved, in that, in a loyal State, removed from the seat of active hostilities, the court justified, not upon the basis of necessity, but of legislative sanction, an act of spoliation.27

§ 736. Habeas Corpus.

The writ of habeas corpus ad subjiciendum is one of a number of so-called extraordinary judicial writs, which like those of certiorari, quo warranto, mandamus and injunction are issued by the courts either in order that their commands may be executed, or that a matter may be brought before them for judicial determination. This especial writ, often termed "the writ of liberty," had become one of the established rights of the citizen before the separation of the American colonies from the mother country, and has ever since been regarded by American citizens as the greatest

26 C. N. Lieber, "The Justification of Martial Law," in the North American Review, 1896.

27 See dissenting opinion of Justice Field and the comments of Hare in his American Constitutional Law, pp. 972 et seq.

of the safeguards erected by the civil law against arbitrary and illegal imprisonment by whomsoever the detention may be exercised or ordered. Issued as of right (ex 'debito justitia)28 by any court of competent jurisdiction, it orders those to whom it is directed to show good legal justification for holding in custody the person in whose favor it is given. Where such sufficient cause is not shown, an order of release follows as of course."

§ 737. Suspension of the Writ.

30

The United States Constitution declares that "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." The implication from this language is that the writ shall not be suspended, except in the cases mentioned. The prohibition is directed only to the Federal Government. Aside, therefore, from the specific provisions of their several constitutions, the States are free to suspend the writ, but in case they do so and without sufficient excuse, the person detained may, of course, obtain the writ from a federal court under the claim that he is deprived of liberty without due process of law.

The suspension of the privilege of the writ, it is to be observed, does not deprive the courts of the right to issue it. It furnishes merely a legal ground for a refusal to obey it.31

Furthermore, the suspension of the writ goes no further than to justify this refusal. It thus enables executive agents to make arrests at will, and, while the suspension is in force, renders it impossible for those apprehended to obtain a judicial judgment upon the legality of such arrests and detention. But it does not operate actually to authorize such arrests, 32 or to deprive the individual of any of the other rights which the law secures him,

28 But not of course, for the petition must set out a cause for its issuance. 29 The jurisdiction of the federal courts with reference to the issuance of the writ has been considered in an earlier chapter. Chapter VIII. 30 Art. I, Sec. 9, Cl. 2.

31 Ex parte Vallandigham, I Wall. 243; 17 L. ed. 589.

32 The four minority justices in the Milligan case asserted, though, it would seem improperly, that the suspension of the writ does have this effect.

and, therefore, the persons responsible for the arrests and detention may still be held civilly and criminally responsible for any illegal acts that they may have committed. In time of war, or of domestic insurrection or disorder, when so-called martial law has been declared, the privilege of the writ of habeas corpus, together with all the other civil guarantees may, for the time being, be suspended; but, as we have already learned in the preceding chapter, actual public necessity, and this alone, will furnish legal justification for this.

The existence of civil war operates as regards the enemy ipso facto, that is, without formal declaration, as a suspension of the privilege of the writ of habeas corpus, together with, as said, the suspension of the other guarantees to the individual against arbitrary executive action. In the preceding chapter the principle was sustained that the establishment of martial law may properly take place not only upon the theater of active hostilities, but elsewhere when the actual necessities of the case demand it.

The suspension of the privilege of the writ of habeas corpus falls short of the establishment of martial law, but to justify it there is required the same public necessity as that required for the enforcement of martial law. The same reasoning, therefore, that was employed with reference to this latter subject is applicable to the question of the suspension of the writ of habeas corpus, and need not here be repeated.

§ 738. Power of the President to Suspend its Writ.

In Ex parte Bollman33 the Supreme Court in its opinion took for granted that the power of suspension lay with Congress, and the same view was held by Story in his Commentaries.34

In the Bollman case Marshall said: "If at any time the public safety should require the suspension of the powers vested by this

33 4 Cr. 75; 2 L. ed. 554.

34 § 1336. Story says: "Hitherto no suspension of the writ has ever been authorized by Congress since the establishment of the Constitution. It would seem, as the power is given to Congress to suspend the writ of habeas corpus in cases of rebellion or invasion, that the right to judge whether the exigency had arisen must exclusively belong to that body."

act [granting jurisdiction] in the courts of the United States, it is for the legislature to say so. The question depends on political considerations, on which the Legislature is to decide. Until the legislative will be expressed, this court can only see its duty and must obey the laws."

The correctness of this view does not appear to have been questioned until the early period of the Civil War, when President Lincoln, upon the advice of his Attorney-General, declared that the power lay with him, and by various proclamations authorized the suspension of the writ in places both within and without the area of active hostilities.35

The rightfulness of this assumption of power by the President was severely criticised notwithstanding the arguments of the Attorney-General and of the eminent jurist Horace Binney. This criticism was judicially expressed by Chief Justice Taney in a protest which he filed in the case of Ex parte Merryman.36

In that case obedience to a writ which he had issued being refused by a military officer of the United States, acting under the authority of the President, Taney recognized his inability to compel its execution and filed a protesting opinion in the course of which, after calling attention to the fact that the constitutional provision providing for the suspension of the writ is found in the article which is devoted to the legislative department and is, therefore, to be presumed to relate to the powers of Congress, he said: "The only power, therefore, which the President possesses, where the life, liberty or property' of a private citizen are concerned, is the power and duty prescribed in the third section

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35 For an able argument sustaining this position, see the three pamphlets issued in 1862, 1863, and 1865 by Horace Binney, entitled "The Principles of the Writ of Habeas Corpus" For other discussions see the article by Joel Parker, entitled Habeas Corpus and Martial Law," in the North American Review, October, 1861; that by S. G. Fisher in the Political Science Quarterly, vol. III, p. 454, entitled “The Suspension of Habeas Corpus during the War of the Rebellion" (criticising Binney); the pamphlet "Executive Power," by B. R. Curtis, reprinted in the second volume of his Life, and also in the second volume of Curtis' Constitutional History of the United States (ed. 1896).

36 Taney's Reports, 246.

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