History of the Federal Judiciary

History of the Federal Judiciary

  Ex parte Merryman and Debates on Civil Liberties During the Civil War
Historical Documents

Opinion of Attorney General Edward Bates, July 5, 1861 (excerpts)
On May 30, 1861, three days after Taney offered his oral opinion in Ex parte Merryman, President Lincoln asked Attorney General Edward Bates to consult with former Attorney General Reverdy Johnson on the legal authority to suspend the writ of habeas corpus. On July 5, Bates reported to Lincoln on two questions related to habeas corpus: (1) Did the President have the authority in a time of domestic rebellion to arrest and detain individuals known to be working in support of the insurgents?; and (2) In the case of such arrests, did the President have the authority to refuse to obey a writ of habeas corpus? Like Lincoln, Bates rooted the authority to arrest and detain rebels in the President’s sworn duty to preserve, protect, and defend the Constitution. That duty required the suppression of domestic insurrections, and only the President was able to determine how to suppress a rebellion and thereby see that the laws of the nation were executed. Bates believed the Constitution established a clear separation of powers that prevented the judiciary from in any way restricting the President’s performance of the executive’s constitutional duties. Unlike Taney, who described the executive branch as limited in its inherent powers, Bates thought the executive was of all the branches, “the most active, and the most constant in action,” whereas the judiciary was “powerless to impose rules of action and of judgment upon the other departments.”

Bates, of Missouri, had served as that state’s first attorney general in 1821, and later served in the U.S. House of Representatives and the Missouri legislature. He was a candidate for the Republican presidential nomination in 1860, and like the other unsuccessful candidates, he received an invitation from the victorious Lincoln to serve in the cabinet. Bates served as attorney general until his retirement in December 1864.

[Document Source:
Official Opinions of the Attorneys General of the United States. Ed., J. Hubley Ashton. vol. 10. Washington, D.C.: W.H. & O.H. Morrison, 1868.]

It is the plain duty of the President (and his peculiar duty, above and beyond all other departments of the government) to preserve the Constitution and execute the laws all over the nation; and it is plainly impossible for him to perform this duty without putting down rebellion, insurrection, and all unlawful combinations to resist the general government. The duty to suppress the insurrection being obvious and imperative, the two acts of Congress of 1795 and 1807 come to his aid, and furnish the physical force which he needs to suppress the insurrection and execute the laws. These two acts authorize the President to employ for that purpose, the militia, the army, and the navy.

The argument may be briefly stated, thus: It is the President’s bounden duty to put down the insurrection, as (in the language of the act of 1795) the “combinations are too powerful to be suppressed by the ordinary course of judicial proceedings, or by the powers vested in the marshals.” And this duty is imposed on the President for the very reason that the courts and the marshals are too weak to perform it. . . .

If it be true, as I have assumed, that the President and the judiciary are co-ordinate 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 President to come before him
ad subjiciendum – that is, to submit implicitly to his judgment, and, in case of disobedience, treat him as a criminal, in contempt of a superior authority, and punish him, as for a misdemeanor, by fine and imprisonment. . . . 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 in the government, is eminently and exclusively political in all his principal functions. As the political chief of the nation, the Constitution charges him with its preservation, protection, and defence, and requires him to take care that the laws be faithfully executed. . . . And the 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.


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