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by Jackson's veto message on the bill extending the charter of the Bank of the United States in July 1832, only a few months later. It is true that the State of Georgia resisted the effort of the Supreme Court to assert its jurisdiction but there is little to uphold the contention that Jackson would do anything to undermine the authority of the Federal judiciary. Jackson's interest in the Union and in national authority was demonstrated forcefully in November and December of 1832, when, after South Carolina passed its Nullification Ordinance, Jackson took forthright action and recommended enactment by the Congress of "vigorous and radical" legislation giving the Federal courts and officials authority to deal with the situation." President Jackson's attitude toward the Supreme Court should not be misconstrued as an argument for unlimited executive power particularly in view of his veto message on the bill to renew the charter of the Bank of the United States. In that message, however, Jackson merely emphasized his right to use the veto power given to him by the Constitution irrespective of anyone else's views on pending legislation. Jackson never asserted any right to refuse to execute any law enacted according to constitutional processes. Jackson said in response to the argument by advocates of the bill to the effect that the Supreme Court had upheld the constitutionality of the Bank's charter that such a decision

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ought not to control the coordinate authorities of this Government. much the duty of the House of Representatives, of the Senate, and of the President, to decide upon the constitutionality of any bill or resolution which may be presented to them for passage or approval, as it is of the Supreme Judges when it may be brought before them for judicial decision. The opinion of the Judges has no more authority over Congress than the opinion of Congress has over the Judges; and on that point the President is independent of both. The authority of the Supreme Court must not, therefore, be permitted to control the Congress, or the Executive, when acting in their legislative capacities, but to have only such influence as the force of their reasoning may deserve.45

The eminent historian of constitutional law, Charles Warren, summarizes Jackson's viewpoint thus:

Jackson never asserted a right to decline to carry out a Court decision, when acting in his Executive capacity. It was when exercising his part of the lawmaking function of the Nation, and when deciding upon signature or veto of a bill presented to him, that he claimed the privilege of determining for himself the constitutionality of the proposed measure.46

Lincoln: The Commander-in-Chief, and the Use of Military Power

An extraordinarily vigorous use of executive power, characterized President Abraham Lincoln's tenure of office and the Civil War period. Some interesting aspects of Presidential power came to the fore as Lincoln waged his battle to preserve the Union. Primary among these was the President's use of his position as Commander

44 Warren, op. cit., p. 774.

45 Quoted in Warren, op. cit., pp. 761-762.

44 Warren, op. cit., p. 762. Chief Justice Taney explained Jackson's position as follows in a letter quoted in Warren at p. 763:

"He has been charged with asserting that he, as an Executive officer, had a right to judge for himself whether an act of Congress was constitutional or not, and was not bound to carry it into execution if he believed it to be unconstitutional, even if the Supreme Court decided otherwise; and this misrepresentation has been kept alive for particular purposes of personal ill will, and has, I learn, been repeated in the Senate during its late session. Yet no intelligent man who reads the message can misunderstand the meaning of the President. He was speaking of his rights and his duty, when acting as a part of the Legislative power, and not of his right or duty as an Executive officer. For when a bill is presented to him and he is to decide whether, by his approval, it shall become a law or not, his power or duty is purely Legislative as that of a member of Congress, when he is called on to vote for or against a bill. If he has firmly made up his mind that the proposed law is not within the powers of the General Government, he may and he ought to vote

in Chief, a constitutional power which received increased significance immediately upon the outbreak of hostilities within the very borders. of our Nation.

The President's position as Commander in Chief gains importance in periods of war or armed conflict affecting the United States.

The Supreme Court has stated that even with a declaration of war by the Congress the Commander in Chief powers are restricted to military affairs. The words of the Court are these:

* * * nor does the law declaring the war imply an authority to the President to enlarge the limits of the United States by subjugating the enemy's country. The United States, it is true, may extend its boundaries by conquest or treaty, and may demand the cession of territory as the condition of peace, in order to indemnify its citizens for the injuries they have suffered, or to reimburse the Government for the expenses of the war. But this can be done only by the treaty-making power or the legislative authority, and is not a part of the power conferred upon the President by the declaration of war. His duty and his power are purely military. As commander-in-chief, he is authorized to direct the movements of the naval and military forces placed by law at his command, and to employ them in the manner he may deem most effectual to harass and conquer and subdue the enemy. He may invade the hostile country, and subject it to the sovereignty and authority of the United States. But his conquests do not enlarge the boundaries of this Union, nor extend the operation of our institutions and laws beyond the limits before assigned to them by the legislative power. *** 47

In practice President Lincoln and other Presidents have used this military office bestowed upon them by the Constitution to enlarge the powers of the presidency, although with good faith and with noble motives, with greater impact upon the civilian population and our constitutional system than upon the military forces. One writer has summed up the situation in this manner:

***Problems arise, however, from the nature of the grant of presidential power. This clause is unique in the Constitution in granting authority in the form of an office rather than in the form of a function. The President is not given the function "to command the Army and Navy"; he is given the office of "Commander in Chief." This difference in form is of considerable importance, for it left undefined the specific powers and functions. This eased the approval of the Constitution in the ratifying conventions, but it gave subsequent generations something to argue about.

The powers of the Commander in Chief might range from the extremely broad power to conduct war to a narrowly restricted power of military command. They certainly exclude all powers specifically assigned to Congress or the states, and they probably include all purely military powers not so assigned. But does the office possess nonmilitary powers as well? The Framers themselves seemed to hold conflicting opinions on this point. The Supreme Court in 1850, however, declared that the duty and power of the President as Commander in Chief were "purely military," and denied the similarity between the presidential authority and the royal prerogative. So long as the Commander in Chief power was interpreted as purely military, it remained, in Professor Corwin's phrase, "the forgotten clause" of the Constitution. In the Civil War and in World War II, however, Lincoln and Roosevelt used the clause to justify an extraordinarily broad range of nonmilitary presidential actions largely legislative in nature. The justification of these actions by the Commander in Chief clause was persuasive, however, only because John Rutledge defined that power as an office rather than a function. It could be argued that the office of Commander in Chief possesses authority to seize a strike-bound war plant. It would be harder to argue that the function of com-manding the Army and Navy implied such authority. The Commander in Chief clause, in other words, has been of relatively little direct use in securing civilian control over the military. Indeed, in one respect it has been directly detrimental to such control. But because it was phrased as an office rather than a function, 47 Fleming et al. v. Page, 9 How. 603, 614-615; 1850. See H. Doc. No. 443, 84th Cong., 2d sess., The Powers of the President as Commander in Chief of the Army and Navy of the United States, which cites this case at p. 48 for what appears to be a proposition not indicated by the contents of the case and the holding of the court. This document is useful for the references it contains but some of the conclusions drawn from the references do not appear to be warranted by the sources cited.

it has been of great use to the President in expanding his power at the expense of Congress. This, in turn, has broadened the area of conflict between these two institutions and, consequently, if indirectly, has further impeded civilian control by increasing the likelihood that military leaders will be drawn into political controversy.

***48

No sooner had the first shots been fired at Fort Sumter than President Lincoln was confronted with the most serious crisis in the Nation's history since the founding of the Republic.

On April 25, 1861, fearful for the safety of the Nation's Capital in view of pro-Confederate activities in Maryland, Lincoln addressed a letter of instructions to General Scott telling him to watch the activities of the Maryland State Legislature and to act to suppress insurrection including "** * in the extremest necessity, the suspension of the writ of habeas corpus.'

29 49

On May 25, 1861, one John Merryman was arrested by Federal soldiers and confined in Fort McHenry under the command of General Cadwalader. Merryman was alleged to be an officer of a company having arms and intending armed hostility against the United States. On May 26, 1861 a petition for habeas corpus was presented to Chief Justice Taney who thereupon ordered that the writ of habeas corpus issue and be returnable before the Chief Justice in the United States Circuit Court room in Baltimore on the following day, May 27, 1861. On May 27, 1861, General Cadwalader had the writ returned by a Colonel Lee. In the return to the writ General Cadwalader explained that Merryman was being held because of a charge

43 Samuel P. Huntington, Civilian Control and the Constitution, in the American Political Science Review, vol. L. No. 3, September 1956, p. 690. Mr. Huntington makes the point that the framers of the Constitution deliberately divided control over the military between the Congress and the President and gave the Congress the important function of declaring war among others important to the military functions such as raising and supporting armies, making rules for the government of military forces, etc.

That Congress cannot take away the President's supreme command seems almost a truism particularly as it applies to the command of military forces. In the case of Swaim v. U. S. (28 Court of Claims, 173, 221; 1893) the Court of Claims stated its views as follows:

"It may be historically true that the commander in chief during the Revolution ascribed his power to order courts-martial directly to the Continental Congress; and it may also be true that at the time of the adoption of the Constitution the annual consent of Parliament to the existence of a standing army was conditioned upon statutory provisions relating to such military tribunals, though upon these historical questions the court expresses no opinion; but nevertheless there remains the significant fact in our military system that the President is always the commander in chief. Congress may increase the Army, or reduce the Army, or abolish it altogether; but so long as we have a military force Congress can not take away from the President the supreme command. It is true that the Constitution has conferred upon Congress the exclusive power 'to make rules for the government and regulation of the land and naval forces;' but the two powers are distinct; neither can trench upon the other; the President can not, under the disguise of military orders, evade the legislative regulations by which he in common with the Army must be governed; and Congress can not in the disguise of 'rules for the government' of the Army impair the authority of the President as commander in chief. **

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49 The text of Lincoln's order is as follows:

"Lieutenant-General SCOTT.

WASHINGTON, April 25, 1861.

"MY DEAR SIR: The Maryland Legislature assembles tomorrow at Annapolis, and not improbably will take action to arm the people of that State against the United States. The question has been submitted to and considered by me whether it would not be justifiable, upon the ground of necessary defense, for you, as General in Chief of the United States Army, to arrest or disperse the members of that body. I think it would not be justifiable nor efficient for the desired object.

"First. They have a clearly legal right to assemble, and we can not know in advance that their action will not be lawful and peaceful, and if we wait until they shall have acted their arrest or dispersion will not lessen the effect of their action.

"Secondly. We can not permanently prevent their action. If we arrest them, we can not long hold them as prisoners, and when liberated they will immediately reassemble and take their action; and precisely the same if we simply disperse them-they will immediately reassemble in some other place.

"I therefore conclude that it is only left to the Commanding General to watch and await their action, which, if it shall be to arm their people against the United States, he is to adopt the most prompt and efficient means to counteract, even, if necessary, to the bombardment of their cities and, in the extremest necessity, the suspension of the writ of habeas corpus.

"Your obedient servant,

"ABRAHAM LINCOLN."

(From a compilation of the Messages and Papers of the Presidents by James D. Richardson, Bureau of National Literature, Inc., New York, 1897, vol. VII, pp. 3218-3219.)

On April 27, 1861, Lincoln authorized the suspension of the writ of habeas corpus by the Commanding General of the Army between the city of Philadelphia and Washington, D. C., and later extended the coverage of the authorization to New York and finally to Bangor, Maine, (Richardson, op. cit., vols.

of various acts of treason and that he, General Cadwalader, had been duly authorized by the President, in such cases, to suspend the writ of habeas corpus for the public safety. General Cadwalader asked the Chief Justice to postpone further action until the general could receive further instructions from the President.

The Chief Justice forthwith ordered a writ of attachment to issue against General Cadwalader for contempt in refusing to produce the body of John Merryman, the writ to be returned on the following day, May 28, 1861. On the following day the marshal made the following return to the writ of attachment:

*** I hereby certify to the Honorable Roger B. Taney, Chief Justice of the supreme Court of the United States, that by virtue of the within writ of attachment, to me directed, on the 27th day of May 1861, I proceeded, on this 28th day of May 1861, to Fort McHenry, for the purpose of serving the said writ. I sent in my name at the outer gate; the messenger returned with the reply, "that there was no answer to my card," and therefore, could not serve the writ, as I was commanded. I was not permitted to enter the gate. So answers

WASHINGTON BONIFANT,

United States Marshal for the District of Maryland.50

The Chief Justice rendered his opinion after stating:

*** that the marshal had the power to summon the posse comitatus to aid him in seizing and bringing before the court, the party named in the attachment, who would, when so brought in, be liable to punishment by fine and imprisonment; but where, as in this case, the power refusing obedience was so notoriously superior to any the marshal could command, he held that officer excused from doing anything more than he had done.51

In his opinion Taney concluded that the power to suspend the writ of habeas corpus is exclusively a legislative power and that the President cannot suspend the privilege nor authorize a military officer to do it. Taney based his argument on legal and constitutional history and the fact that the power to suspend the writ is contained in the first or legislative article of the Constitution.52

50 Taney's Decisions in the Circuit Court of the United States for the District of Maryland, 1836-61, Philadelphia, Kay & Bro., 1871, p. 252. 51 Ibid., pp. 252-253.

52 Ex parte Merryman, Ibid., pp. 256-258:

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The clause of the constitution, which authorizes the suspension of the privilege of the writ of habeas corpus, is in the 9th section of the first article. This article is devoted to the legislative department of the United States, and has not the slightest reference to the executive department. It begins by providing 'that all legislative powers therein granted, shall be vested in a congress of the United States, which shall consist of a senate and house of representatives.' And after prescribing the manner in which these two branches of the legislative department shall be chosen, it proceeds to enumerate specifically the legislative powers which it thereby grants; and at the conclusion of this specification, a clause is inserted giving congress 'the 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.'

"The power of legislation granted by this latter clause is, by its words, carefully confined to the specific objects before enumerated. But as this limitation was unavoidably somewhat indefinite, it was deemed necessary to guard more effectually certain great cardinal principles, essential to the liberty of the citizen, and to the rights and equality of the states, by denying to congress, in express terms, any power of legislation over them. It was apprehended, it seems, that such legislation might be attempted, under the pretext that it was necessary and proper to carry into execution the powers granted; and it was determined, that there should be no room to doubt, where rights of such vital importance were concerned; and accordingly, this clause is immediately followed by an enumeration of certain subjects, to which the powers of legislation shall not extend. The great importance which the framers of the constitution attached to the privilege of the writ of habeas corpus, to protect the liberty of the citizen, is proved by the fact, that its suspension, except in cases of invasion or rebellion, is first in the list of prohibited powers; and even in these cases the power is denied, and its exercise prohibited, unless the public safety shall require it.

"It is true, that in the cases mentioned, congress is, of necessity, the judge of whether the public safety does or does not require it; and their judgment is conclusive. But the introduction of these words is a standing admonition to the legislative body of the danger of suspending it, and of the extreme caution they should exercise, before they give the government of the United States such power over the liberty of a citizen.

"It is the second article of the constitution that provides for the organization of the executive department, enumerates the powers conferred on it, and prescribes its duties. And if the high power over the liberty of the citizen now claimed, was intended to be conferred on the president, it would undoubtedly be found in plain words in this article; but there is not a word in it that can furnish the slightest ground to justify the exercise of the power

Taney went on to state that the civil courts and processes were functioning and that Merryman should have been charged and tried according to those processes.53

Although Taney's position was later vindicated by the Supreme Court 54 he had to content himself with addressing a plea to President Lincoln in the instant case. 55 There is no evidence that the plea was heeded.

Lincoln himself was not unaware of the legal problems involved and he specifically referred the matter to the Congress in his message to the extraordinary session of Congress convened on July 4, 1861.56 Lincoln left the matter of legislation to the Congress and defended his action in suspending the writ of habeas corpus by asking: "Are all the laws but one to go unexecuted, and the Government itself go to pieces lest that one be violated? Even in such a case, would not the official oath (of the President) be broken if the Government should be overthrown when it was believed that disregarding the single law would tend to preserve it?" Lincoln himself underscored the fact in this message that "* * * nothing has been done beyond the constitutional competency of Congress.'

18 Ex parte Merryman, Ibid, pp. 267-268.

54 See Ex parte Milligan, infra.

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55 Ex parte Merryman, Taney's Decisions, op. cit., pp. 268-270:

***** The constitution provides, as I have before said, that 'no person shall be deprived of life, liberty or property, without due process of law.' It declares that 'the right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated; and no warrant shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.' It provides that the party accused shall be entitled to a speedy trial in a court of justice.

"These great and fundamental laws, which congress itself could not suspend, have been disregarded and suspended, like the writ of habeas corpus, by a military order, supported by force of arms. Such is the case now before me, and I can only say that if the authority which the constitution has confided to the judiciary department and judicial officers, may thus, upon any pretext or under any circumstances, be usurped by the military power, at its discretion, the people of the United States are no longer living under a government of laws, but every citizen holds life, liberty and property at the will and pleasure of the army officer in whose military district he may happen to be found.

"In such a case, my duty was too plain to be mistaken. I have exercised all the power which the constitution and laws confer upon me, but that power has been resisted by a force too strong for me to overcome. It is possible that the officer who has incurred this grave responsibility may have misunderstood his instructions, and exceeded the authority intended to be given him; I shall, therefore, order all the proceedings in this case, with my opinion, to be filed and recorded in the circuit court of the United States for the district of Maryland, and direct the clerk to transmit a copy, under seal, to the president of the United States. It will then remain for that high officer, in the fulfilment of his constitutional obligation to 'take care that the laws be faithfully executed.' to determine what measures he will take to cause the civil process of the United States to be respected and enforced."

56 The full passage from Lincoln's message is as follows:

*** *Soon after the first call for militia it was considered a duty to authorize the Commanding General in proper cases, according to his discretion, to suspend the privilege of the writ of habeas corpus, or, in other words, to arrest and detain without resort to the ordinary processes and forms of law such individuals as he might deem dangerous to the public safety. This authority has purposely been exercised but very sparingly. Nevertheless, the legality and propriety of what has been done under it are questioned, and the attention of the country has been called to the proposition that one who is sworn to 'take care that the laws be faithfully executed' should not himself violate them. Of course some consideration was given to the questions of power and propriety before this matter was acted upon. The whole of the laws which were required to be faithfully executed were being resisted and failing of execution in nearly one-third of the States. Must they be allowed to finally fail of execution, even had it been perfectly clear that by the use of the means necessary to their execution some single law, made in such extreme tenderness of the citizen's liberty that practically it relieves more of the guilty than of the innocent, should to a very limited extent be violated? To state the question more directly, Are all the laws but one to go unexecuted, and the Government itself go to pieces lest that one be violated: Even in such a case, would not the official oath be broken if the Government should be overthrown when it was believed that disregarding the single law would tend to preserve it? But it was not believed that this question was presented. It was not believed that any law was violated. The provision of the Constitution 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' is equivalent to a provision-is a provision-that such privilege may be suspended when, in cases of rebellion or invasion, the public safety does require it. It was decided that we have a case of rebellion and that the public safety does require the qualified suspension of the privilege of the writ which was authorized to be made. Now it is insisted that Congress, and not the Executive, is vested with this power; but the Constitution itself is silent as to which or who is to exercise the power; and as the provision was plainly made for a dangerous emergency it can not be believed the framers of the instrument intended that in every case the danger should run its course until Congress could be called together, the very assembling of which might be prevented, as was intended in this case, by the rebellion * (Richardson, op. cit., vol. VII, pp. 3225-3226.)

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