It was almost 2 years before the Congress passed legislation dealing with the matter of habeas corpus.57 The Habeas Corpus Act of March 3, 1863, authorized the President to suspend the writ when "*** in his judgment, the public safety may require it ***". The act went on, however, to provide that reports of persons so detained be furnished to the circuit and district courts of the United States (persons who are "*** citizens of states in which the administration of the laws has continued unimpaired in the said Federal courts ***" and who are held "* * * as state or political prisoners, or otherwise than as prisoners of war ***"). The act provided that when a list had been furnished to the court and when a grand jury had terminated its session “* * * without finding an indictment or presentment, or other proceeding against any such person, it shall be the duty of the judge of said court forthwith to make an order that any such prisoner desiring a discharge from said imprisonment be brought before him to be discharged. The act made it a crime punishable by fine and imprisonment for any officer of the United States having custody of such persons to delay or refuse to execute the court's order.

Thus without saying so in specific language, the Congress legalized Lincoln's actions. In addition, however, the Congress asserted its jurisdiction over the matter of habeas corpus suspension.

It appears therefore, that in the face of most extreme emergency there may be a lag in statutory law as summarized above. As Professor Hart has pointed out "*** in a really critical situation *** President Lincoln could preserve the Union only by taking action of doubtful legality without waiting for legislative authorization." 58

When the lag in legislative action is overcome by action of Congress, except for criminal penalties, the Congress may ratify the actions of the President, thereby curing defects which may have existed. In The Prize Cases (2 Black 635; 1862) the Supreme Court dealt with the challenge to the President's right to proclaim a blockade which resulted in the capture of prizes by the public ships of the United States. President Lincoln had declared a blockade on the 27th and 30th of April 1861. The question was whether a state of war existed which authorized the use of blockade under the laws of nations.

The Supreme Court pointed out that by acts of Congress of February 28, 1795, and March 3, 1807, the President was authorized to call out the militia and use the military and naval forces of the United States in case of invasion by foreign nations, "* * and to suppress insurrection against the government of a State or of the United States.' The Court stated:

*

"

*** If it were necessary to the technical existence of a war, that it should have a legislative sanction, we find it in almost every act passed at the extraordinary session of the Legislature of 1861, which was wholly employed in enacting laws to enable the Government to prosecute the war with vigor and efficiency. And finally, in 1861, we find Congress "ex majore cautela" and in anticipation of such astute objections, passing an act "approving, legalizing, and making valid all the acts, proclamations, and orders of the President, etc., as if they had been issued and done under the previous express authority and direction of the Congress of the United States."

Without admitting that such an act was necessary under the circumstances, it is plain that if the President had in any manner assumed powers which it was necessary should have the authority or sanction of Congress, that on the well

57 For the story of congressional consideration and action see George Clarke Sellery, Lincoln's Suspension of Habeas Corpus as Viewed by Congress, a reprint from the Bulletin of the University of Wisconsin History Series, vol. I, No. 3; 1907.

68 Hart, op. cit., p. 61.

known principle of law, "omnis ratihabitio retrotrahitur et mandato equiparatur," this ratification has operated to perfectly cure the defect. In the case of Brown v. United States, (8 Cr. 131, 132, 133,) Mr. Justice Story treats of this subject, and cites numerous authorities to which we may refer to prove this position, and concludes, “I am perfectly satisfied that no subject can commence hostilities or capture property of an enemy, when the sovereign has prohibited it. But suppose he did, I would ask if the sovereign may not ratify his proceedings, and thus by a retroactive operation give validity to them?"

Although Mr. Justice Story dissented from the majority of the Court on the whole case, the doctrine stated by him on this point is correct and fully substantiated by authority.

The objection made to this act of ratification, that it is ex post facto, and therefore unconstitutional and void, might possibly have some weight on the trial of an indictment in a criminal Court. But precedents from that source cannot be received as authoritative in a tribunal administering public and international law.

On this first question therefore we are of the opinion that the President had a right, jure belli, to institute a blockade of ports in possession of the States in rebellion, which neutrals are bound to regard * * * 59

The circumstances of emergency periling the very existence of the Nation may also give rise to a lag in the application of the law by the courts in the area of Presidential action. This is illustrated by the contrast of the actions of the Supreme Court in the cases of Ex parte Vallandigham and Ex parte Milligan, the first decided during the Civil War and the second decided after hostilities had ceased.60

Vallandigham, a civilian, was tried and convicted by a military commission appointed pursuant to an order of General Burnside, commanding the military department of Ohio. Vallandigham was arrested on May 6, 1863, for having spoken in public against the Union cause on May 1, 1863. His sentence was originally fixed at confinement for the remainder of the war, but Lincoln commuted the sentence and had Vallandigham put out beyond the Union lines in Tennessee.

Vallandigham petitioned the Supreme Court for certiorari and the Court held it had no jurisdiction to issue the writ. It stated its authority to issue the writ must come from the Constitution and the statutes and concluded that in neither place had the Court been given appellate jurisdiction over military commissions. These, the Court stated, were not "courts" within the meaning of the 14th section of the Judiciary Act of 1789.

Said the Court:

Whatever may be the force of Vallandigham's protest, that he was not triable by a court of military commission, it is certain that his petition cannot be brought within the 14th section of the act; and, further, that the court cannot, without disregarding its frequent decisions and interpretation of the Constitution in respect to its judicial power, originate a writ of certiorari to review or pronounce any opinion upon the proceedings of a military commission. It was natural, before the sections of the 3d article of the Constitution had been fully considered in connection with the legislation of Congress, giving to the courts of the United States power to issue writs of scire facias, habeas corpus, and all other writs not specially provided for by statute, which might be necessary for the exercise of their respective jurisdiction, that by some members of the profession it should have been thought, and some of the early judges of the Supreme Court also, that the 14th section of the Act of 24th September, 1789, gave to this court a right to originate processes of habeas corpus ad subjiciendum, writs of certiorari to review the proceedings of the inferior courts as a matter of original jurisdiction, without being in any way restricted by the constitutional limitation, that in all cases affecting ambassadors, other public ministers and consuls, and those in which a

59 2 Black 670–671. It should be noted that while the President's actions may mark a recognition of de facto war enabling him to perform his duty to suppress insurrection or oppose undeclared war, the President by his proclamation of the end of hostilities cannot affect the exercise of the war power by the Congress. Woods v. Cloyd W. Miller Co., 333 U. S. 138; 1947.

State shall be a party, the Supreme Court shall have original jurisdiction. This limitation has always been considered restrictive of any other original jurisdiction. The rule of construction of the Constitution being, that affirmative words in the Constitution, declaring in what cases the Supreme Court shall have original jurisdiction, must be construed negatively as to all other cases. ***61

In

Thus, the Supreme Court on procedural grounds refused to inject itself into the controversy presented to it in 1863-64 over the actions of military commissions. În 1866, the war over, the Supreme Court met the substantive issues presented in the Vallandigham case head on in the case of Ex parte Milligan.

The case of Lambdin P. Milligan came to the Supreme Court on a certificate of divided opinion from the circuit court in Indiana. The Court recognized that a change in circumstances enabled it to deal more adequately with the issues involved.

The importance of the main question presented by this record cannot be overstated; for it involves the very framework of the government and the fundamental principles of American liberty.

During the late wicked Rebellion, the temper of the times did not allow that calmness in deliberation and discussion so necessary to a correct conclusion of a purely judicial question. Then, considerations of safety were mingled with the exercise of power; and feelings and interests prevailed which are happily terminated. Now that the public safety is assured, this question, as well as all others, can be discussed and decided without passion or the admixture of any element not required to form a legal judgment. We approach the investigation of this case, fully sensible of the magnitude of the inquiry and the necessity of full and cautious deliberation *** 62

Milligan, a civilian, had been sentenced to be executed after a trial by a military commission in October 1864 on charges of insurrectionary activity. The sentence was approved by the President. Milligan petitioned the circuit court to be discharged from custody under the terms of the Habeas Corpus Act of 1863, supra, since a grand jury had met and been discharged since his confinement and had not returned any indictment against him. The Supreme Court held that Milligan was entitled to be discharged from custody under the terms of the act and that the military commission had no jurisdiction legally to try and to sentence Milligan.

In a sweeping opinion the majority refused to accept the contention that martial law could justify the proceedings of the military commission. The majority stated that martial law could not be justified in Indiana since there was no actual invasion and the courts and civil administration were functioning. The majority stated that the basic safeguards for the individual written into the Constitution could not be disturbed by either the President, the Congress, or the judiciary save for the provision for the suspension of the writ of habeas corpus. The Court stated:

It is claimed that martial law covers with its broad mantle the proceedings of this military commission. The proposition is this: that in a time of war the commander of an armed force (if in his opinion the exigencies of the country demand it, and of which he is to judge), has the power, within the lines of his military district, to suspend all civil rights and their remedies, and subject citizens as well as soldiers to the rule of his will; and in the exercise of his lawful authority cannot be restrained, except by his superior officer or the President of the United States. If this position is sound to the extent claimed, then when war exists, foreign or domestic, and the country is subdivided into military departments for mere convenience, the commander of one of them can, if he chooses, within his limits, on the plea of necessity, with the approval of the Executive, substitute military

61 1 Wall. 251-252.

62 4 Wall. 109.

force for and to the exclusion of the laws, and punish all persons, as he thinks right and proper, without fixed or certain rules.

The statement of this proposition shows its importance; for, if true, republican government is a failure, and there is an end of liberty regulated by law. Martial law, established on such a basis, destroys every guarantee of the Constitution, and effectually renders the "military independent of and superior to the civil power" the attempt to do which by the King of Great Britain was deemed by our fathers such an offense, that they assigned it to the world as one of the causes which impelled them to declare their independence. Civil liberty and this kind of martial law cannot endure together; the antagonism is irreconcilable; and, in the conflict, one or the other must perish ***63

It will be borne in mind that this is not a question of the power to proclaim martial law, when war exists in a community and the courts and civil authorities are overthrown. Nor is it a question what rule a military commander, at the head of his army, can impose on states in rebellion to cripple their resources and quell the insurrection. The jurisdiction claimed is much more extensive. The necessities of the service, during the late Rebellion, required that the loyal states should be placed within the limits of certain military districts and commanders appointed in them; and, it is urged, that this, in a military sense, constituted them the theatre of military operations; and, as in this case, Indiana had been and was again threatened with invasion by the enemy, the occasion was furnished to establish martial law. The conclusion does not follow from the premises. If armies were collected in Indiana, they were to be employed in another locality, where the laws were obstructed and the national authority disputed. On her soil there was no hostile foot; if once invaded, that invasion was at an end, and with it all pretext for martial law. Martial law cannot arise from a threatened invasion. The necessity must be actual and present; the invasion real, such as effectually closes the courts and deposes the civil administration.

It is difficult to see how the safety of the country required martial law in Indiana. If any of her citizens were plotting treason, the power of arrest could secure them, until the government was prepared for their trial, when the courts were open and ready to try them. It was as easy to protect witnesses before a civil as a military tribunal; and as there could be no wish to convict, except on sufficient legal evidence, surely an ordained and established court was better able to judge of this than a military tribunal composed of gentlemen not trained to the profession of the law.

It follows, from what has been said on this subject, that there are occasions when martial rule can be properly applied. If, in foreign invasion or civil war, the courts are actually closed, and it is impossible to administer criminal justice according to law, then, on the theatre of active military operations, where war really prevails, there is a necessity to furnish a substitute for the civil authority, thus overthrown, to preserve the safety of the army and society; and as no power is left but the military, it is allowed to govern by martial rule until the laws can have their free course. As necessity creates the rule, so it limits its duration; for, if this government is continued after the courts are reinstated, it is a gross usurpation of power. Martial rule can never exist where the courts are open, and in the proper and unobstructed exercise of their jurisdiction. It is also confined to the locality of actual war * * * 64

The Chief Justice and three other Justices with him agreed with the decision of the Court in the case of Milligan but argued that Congress, if it so wished, could authorize trial and punishment by military commission even in States where civil courts are open. These four Justices stated that Congress possessed the power, although it had not exercised it, to authorize the type of action by military commission which had taken place in Indiana. They based their argument on Congress' power to provide by law for carrying on war.

World War II and Korea: The "Aggregate of Powers" as a Constitutional Basis for Presidential Action

Based on President Lincoln's experience and on related cases involving war and other great crises it may be said that there have been

63 4 Wall. 124-25.

cases of temporary Presidential actions, which though of doubtful legality, have been effective in times of great national crisis. But the general effect of both congressional action and judicial interpretation has been to review such actions and to provide for their performance through the established legislative processes in the manner prescribed by law.

A reading of the adjudicated cases yields the conclusion that the courts do not recognize the idea of "inherent" executive power in the Presidency under the Constitution. Nevertheless, while it has not received judicial acceptance, the doctrine of "inherent" Executive power or something approximating it has persisted throughout our history. The "executive grant" or "royal prerogative" argument for "inherent" Presidential powers, advanced by Hamilton in the dispute centering around Washington's proclamation of neutrality in 1793, is a persistent theme in America's constitutional history.

It has been reasserted at times when a President has been confronted with an emergency and has been either unable or unwilling to find or seek authority for contemplated action either explicitly in the Constitution or in existing statutes or to request enactment of new legislation. Circumstances have dictated the course of Presidential action. Despite the broad scope of congressional power under the "necessary and proper" clause of article I, section 8 of the Constitution, Presidents have acted from time to time without waiting for the passage of legislation.

In more recent years there has been added to the controversy a so-called "aggregate of powers" theory of Presidential power. Briefly, the theory states that the President has and may exercise a reservoir of implied powers created by the accumulation of the total of express powers vested in him by the Constitution and the statutes. Thus executive orders will often start with a recital of the so-called powers vested in the President as President, as Commander-in-Chief, etc.

The "aggregate of powers" theory of Presidential power has been stated by Attorney General Biddle in an opinion to the President, dated April 22, 1944. After discussing the power of the President to order seizure and operation of Montgomery Ward plants and facilities in Chicago, Attorney General Biddle concluded:

It is not necessary, however, to rely solely upon the provisions of section 3 of the War Labor Disputes Act. As Chief Executive and as Commander in Chief of the Army and Navy, the President possesses an aggregate of powers that are derived from the Constitution and from various statutes enacted by the Congress for the purpose of carrying on the war. The Constitution lays upon the President the duty to take care that the laws be faithfully executed." The Constitution also places on the President the responsibility and invests in him the powers of Commander in Chief of the Army and Navy. In time of war when the existence of the nation is at stake, this aggregate of powers includes authority to take reasonable steps to prevent nationwide labor disturbances that threaten to interfere seriously with the conduct of the war. The fact that the initial impact of these disturbances is on the production or distribution of essential civilian goods is not a reason for denying the Chief Executive and the Commander in Chief of the Army and Navy the power to take steps to protect the nation's war effort. In modern war the maintenance of a healthy, orderly, and stable civilian economy is essential to successful military effort. The Congress has recognized this fact by enacting such statutes as the Emergency Price Control Act of 1942; the act of October 2, 1942, entitled "An Act to Amend the Emergency Price Control Act of 1942, to aid in preventing inflation, and for other purposes"; the Small Business Mobilization Law of June 11, 1942; and the War Labor Disputes Act. Even in the absence of section 3 of the War Labor Disputes Act, therefore, I believe that by the exercise of the aggregate of your powers as Chief Executive and Commander in Chief, you