War Power of the President

7 Now, if I have succeeded in demonstrating that the Constitution empowers the President to imprison persons by military power, to suppress disloyal and dangerous practices, I think it clearly follows, as a concomitant to this power, that he may suspend the privilege of the writ of habeas corpus, because the writ of habeas corpus is inconsistent with that kind of imprisonment. For instance, in the case of those Maryland prisoners to whom I have alluded ; they were arrested and imprisoned by military authority, under the clearest necessity to the public safety. Suppose they had been brought immediately before a judge on a writ of habeas corpus. The judge would have inquired simply into the legality of the imprisonment. If legal, they would have been remanded to prison ; if not legal, they would have been discharged. The civil courts are, as I have said, independent of the President. They have no jurisdiction of military affairs, nothing to do with the President’s work of suppressing rebellion. Their province is to administer the laws as they find them on the statute-books, and nothing else ; so that with those men before Judge Taney, or any other judge, on a writ of habeas corpus, without any charge of crime regularly entered against them according to the civil code, they would necessarily have been discharged, to pursue their work of treason, and the President’s power in the premises would have been nugatory. This independence of the judiciary, this antagonism, if you please, between the civil and the military authorities, is what creates the necessity for the suspension of the writ of habeas corpus at all. This is why the suspension was not entirely prohibited in the Constitution. Its sole object is to prevent the courts from paralyzing the military arm of the government in times of public danger. If the courts were bound to take cognizance of military necessities, and were competent to appreciate them, there would be no need of a constitutional power to suspend the writ of habeas corpus at all. If Judge Hall, at New Orleans, could have administered the law of military necessity, as General Jackson found it pressing upon him, the general would have had no occasion to suspend the writ of habeas corpus. All this shows the suspension of the writ to be purely a military prerogative. It is constitutionally permitted, only as a militaiy necessity—i. e., “ in cases of rebellion or invasion, when the public safety may require itand none but the military authorities can know when the public safety does require it. The constitutional provision that “ the privilege of the writ of ha-