conveyed to Fort McHenry and there kept in close confinement. And when a [writ of] habeas corupsis served on the commanding officer requiring him to produce the prisoner before a justice of the Supreme Court in order that he may examine into the legality of the imprisonment the answer of the officer is that he is authorized by the President to suspend the writ of habeas corpus at his discretion, and in the exercise of that discretion suspends it in this case and on that ground refuses obedience to the writ.
As the case comes before me therefore I unsterstand that the President not only claims the right to suspend the writ of habeas corpus himself at his discretion but to delegate that discretionary power to a military officer, and to leave it to him to determine whether he will or will not obey judicial process that may be served upon him.
No official notice has been given to the courts of justice or to the public by proclamation or otherwise that the President claimed this power and had exercised it in the manner stated in the return. and I certainly listened to it with some surprise for I had supposed it to be one of those points of constitutional law upon which there was no difference of opinion and that it was admitted on all hands that the privilege of the writ cold not be suspended except by act of Congress.
When the conspiracy of which Aaron Burr was the head became so formidable and was so extensively ramified as to justify in Mr. Jefferson's opinion the suspension of the writ he claimed on his part no power to suspend it but comunicated his opinion to Congress with all the proofs in his possession, in order that Congress might exercise its discretion upon the subject and determine whether the public safety required it. And in the debate which took place upon the subject no one suggested that Mr. Jefferson might exercise the power himself if in his opinion the public safety demanded it.
Having therefore regarded the question as tooell settled to be open to dispute if the commanding officer had stated that upon his own responsibility and in the exercise of his own discretion he refused obedience to the writ I should have contentedmyself with referring to the clause in the Constitution and to the construction it received from every jurist and statesman of that day when the case of Burr was before them. But being thus officially notified that the privilege of the writ has been suspended under the orders and by the authority of the President and believing as I do that the President has exercised a power which he does not possess under the Constitution a proper respect for the high office he fills requires me to state plainly and fully the grounds of my opinion, in order to show that I have not ventured to question the legality of his act without a careful and deliberate examination of the whole subject.
The clause in Constitution which authorizes the suspension of the privilege of the writ of habeas corpus is in the ninth 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 herein 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 legislative powers which it expressly prohibits, and at the conclusion of this specification a clause is inserted giving Congress "the power to make all laws which