War of the Rebellion: Serial 115 Page 0026 PRISONERS OF WAR, ETC.

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As to the second question:

Having assumed in answering the first question that the President has the legal discretionary power to arrest and imprison persons who are guilty of holding criminal intercourse with men engaged in a great and dangerous insurrection, or persons suspected with "probable cause" of such criminal complicity, it might seem unnecessary to go into any prolonged argument to prove that in such a case the President is fully justified in refusing to obey a writ of habeas corpus issued by a court or judge commanding him to produce the body of his prisoner, and state when he took him and by what authority and for what cause he detains him in custody, and then yield himself to judgment "to do, submit to and receive whatsover the judge or court awarding the writ shall consider in that behalf. "

If if be true as I have assumed that the President and the judiciary are co-ordinary departments of government, and the one not subordinate to the other, I do not understand how it can be legally possible for a judge to issue a command to the Presdient to come before him ad subjiciendum - that is to submit implicitly to his judgment and in case of disobedience treat him as for a misdemeanor by fine and imprisonment. It is no answer to say as has sometimes been said that although the writ of habeas corpus cannot be issued and enforced against the President himself, yet that it can be against any of his subordinates for that abandons the principle assumed of giving relief in "all cases" of imprisonment by color of authority of the United States, and attempts to make an untenable distiction between the person of the President and his office and legal power. The law makes no such distinction for it is no respecter of persons. The President in the arrest and imprisonment of men must almost always act by subordinate agents, and yet the thing done is no less his act than if done by his own hand. But it is possible for the President to be in the actual custody of a prisoner taken in civil war or arrested on suspicion of being a secret agent and abettor of rebellion, and in that case the writ must be unavailing unless it run against the President himself. Besides, the whole subject-matter is political and not judicial. The insurrection itself is purely political. Its object is to destroy the political government of this nation and to establish another political government upon its ruins. And the President as the chief civil magistrate of the nation and the most active department of the Government is eminently and exclusively political in all his principal functions. As the political chief of the nation the Constitution charges hinm with its preservation, protection and defense, and requires him to take care the aid of the acts of Congress of 1795 and 1807 he wages open war against armed rebellion, and arrests and holds in custody those whom in the exercise of his political discretion he believes to be friends of and accomplices in the armed insurrection which it is his especial judiciary department has no political powers and claims none, and therefore (as well as for other reasons already assigned) no court or judge can take cognizance of the political acts of the President or undertake to revise and reverse his political decisions.

The jurisdiction exercised under the writ of habeas corpus is in the nature of an appeal (4 C., 75) for as far as concerns the right of the prisoner the whole object of the process is to re-examine and reverse or affirm the acts of the person who imprisoned him. And I think it