bound to bring their bodies before any judge who may send him a writ of habeas corpus, "to do, submit to and receive whatsoever the said judge shall consider in that behalf?
I deny that he is under any obligation to obey such a writ issued under such circumstances. And in making this denial I do but follow the highest judicial authority of the nation. In case of Luther v. Borden (commonly called the Rhode Island case), reported in 7 Howard, p. 1, the Supreme Court discussed several of the most important topics treated on, and among them the powe of the President alone to decide whether the exigency exists authorizing him to call out the militia under the act of 1795. The court affirmed the power of the President in that respect and denied the power of the court to examine and adjudge his proceedings. The opinion of the court, delivered by the learned Chief Justice Taney, declares that if the court had that power "then it would become the duty of the court (provided that it came to the conclusion that the President had decided incorrectly) to discharge those who were arrested or detained by the troops in the service of the United States or the Government which the President was endeavoring to maintain. If (says that learned court) the judicial power extends so far the guarantee contained in the Constitution of the United States (meaning of course protection against insurrection) is a guarantee of anarchy and not of order. "
Whatever I have said about the suspension of the privilege of the writ of habeas corpus has been said in deference to the opinions of others and not because I myself thought it necessary to treat of that subject and all in reference to the present posture of our national affairs. For not doubting the power of the President to capture and hold by force insurgents in open arms against the Government and to arrest and imprison their suspected accomplices I never thought of first suspending the writ of habeas corpus any more than I thought of first suspending the writ of replevin before seizing arms and munitions destined for the enemy.
The power to do these things is in the hand of the President, placed there by the Constitution and the statute law as a sacred trust to be used by him in his best discretion in the peformance of his great first duty - to preserve, protect and defend the Constitution. And for any breach of that trust he is responsible before the high court of impeachment and before no other human tribunal.
The powers of the President falling within this general class have been several times considered by the judiciary and have I believe been uniformly sustained without materially varying from the doctrines laid down in this opinion. I content myself with a simple reference to the cases without encumbering this document already too long with copious extracts: The Rhode Island Case (7 Howard, p. 1.), Fleming v. Page (9 Howard, p. 615), Cross v. Harrison (16 Howard, p. 189), The Santissima Trinidad (7 Wheaton, p. 305), Martin v. Mott (12 Wheaton, p. 29).
To my mind it is not very important whether we call a particular power exercised by the President a peace power or a war power for undoubtedly he is armed with both. He is the chief civil magistrate of the nation and being such and because he is such he is the constitutional Commander in Chief of the Army and Navy, and thus within the limits of the Constitution he rules in peace and commands in war and at this moment he is in the full exercise of all the functions belonging to both those characters. The civil administration is still going on in its peaceful course, and yet we are in the midst of war, a war in which the enemy is for the present dominant in many States and has