Com. Appendix, 286, 287; Hamilton on Banks, 1 Hamilton's Works, 121; McCulloch v. Maryland, 4 Wheat. 406, 407, 419; Calhoun's Essay on the Constitution; Story's Const. Ch. XXIV. § 1236-1258. "POWER" is the ability or faculty of doing a thing; and employ- Define ing the means necessary to its execution; the right to make laws; power? Story's Const. § 1237, 1241. Powers given by the Constitution, imply the ordinary means of execution. (McCulloch v. Maryland, 4 Wheat. 409; 4 Elliot's Debates, 217-221.) Story's Const. 1237. "Expressly delegated," was in the Articles of Confederation. (Ante p. 9, Art. II). Story's Const. § 1238. 71, 93. 269. the clause? The plain import of the clause is, that Congress shall have all the What is the incidental and instrumental powers necessary and proper to carry import of into execution all the express powers. It neither enlarges any power specifically granted, nor is it a grant of any new power to Congress. Story's Const. § 1243. Some have gone further than this. Governor Randolph, 2 Elliot's Debates, 342; Mr. Gerry in 1791, 4 Elliot's Debates, 225, 227. Ex parte Coupland, 26 Tex. 415, 416. The power must be expressed, or be an incident. Virginia Report and Resolutions, Jan. 1800, p. 33, 34; 1 Tuck. Black. Com. App. 287; 288; President Munroe's Exposition and Message, 4th May, 1822, p. 47. The degree of necessity cannot control. 1 Hamilton's works, 118, 120. "NECESSARY" often means no more than needful, requisite, inci- Define necdental, useful or conducive to. Story's Const. § 1248. essary? The word " necessary " has no fixed character peculiar to itself, 146–149, 162as in "ab o utely necessary for executing its inspection laws," as 164. contrasted with this necessary and proper, proves." Story's Const. $1248-1250. See McCulloch v. Maryland, 4 Wheat, 413-418. "PROPER " has a sense, admonitory and directory. It requires Define that the means should be bona fide appropriate to the end. proper? McCulloch v. Maryland, 4 Wheat. 419, 420; Story's Const. § 1253. among the Among the necessarily incidental powers may be classed the right What may to acquire and govern territory; the right to contract and sue; to be classed punish offenders on board ships; to protect collectors of revenue, incidental men in the postal service, and army contractors. (Dugan v. The powers? United States, Wheat. 173, 179, 180; United States v. Tingey, 232–4. 5 Peters, 115; United States v. Bevans, 3 Wheat. 388; The Exchange, 7 Cranch, 116; S. C., 2 Peters, 439; Osborn v. Bank of United States, 9 Wheat. 365, 366); Story's Const. § 1256-1258, and note 2. The law must be necessary and proper. must be borne in mind that no power can execute itself. The means are auxiliary powers * * * * * * As to necessary, it 269. * * * ; that is implied * * * * * powers. * 124. What is the inhibition as can slave trade? as connected with and subordinate to this, that where the implied powers or means used come in contact with the implied powers or means used by another, in the execution of the powers or rights vested in it, the less important should yield to the more important, the convenient to the useful, and both to health and safety; because it is proper they should do so. (Calhoun's Discourse on the Const.) Ex parte Coupland, 26th Tex. 416, 417. The learned Judge also quotes to the same effect from McCulloch v. Maryland. The question is not, whether or not the power to raise armies is granted; but whether to raise them by conscription is implied. (Mr. Munroe's plan in 1814 contrasted.) Id. SEC. IX.-[1.] The migration or importation of such to the Afri- persons as any of the States now existing shall think proper to admit, shall not be prohibited by the congress prior to the year one thousand eight hundred and eight; but a tax or duty may be imposed on such importation, not exceeding ten dollars for each person. per Define son? 24, 35, 46. 85-92. When may the privilege of Habeas 139. MIGRATION OR IMPORTATION OF PERSONS.-"Migration" here, doubtless, means immigration; but as connected with "importation," it is used nearly synonymously with that term; and both have reference to the "PERSONS" who formed the basis of the African slave-trade. This trade was abolished on the 2d of March, 1807. St. 428; 1 Brightly's Dig. 837. Those who wish to consult the statutes on this subject, and the luminous decisions upon a question now mostly obsolete in the United States, are referred to Brightly's Dig., chapter "SLAVE-TRADE," vol. 1, p. 835, and notes thereon; Scott v. Sandford, 19 How. 397; 1 Kent's Com. Lect. 9, pp. 192-203; Cobb on Slavery; Story's Const. § 1331, 1334; 2 Pitk. History, ch. 20, pp. 261, 262; 2 Elliot's Debates, 335, 336; 3 Id. 97, 98, 250, 251; Federalist, 42. This section has no application to the State governments. Butler v. Hopper, 1 Wash. c.c. 499. The word "PERSON may fairly be said to refer to an imported African, and bears some analogy to the same word in Art. I., sec. 2, clause 3. Migration seems appropriately to apply to voluntary arrivals, as importation does to involuntary arrivals; and so far as an exception from a power proves its existence, this proves that the power to regulate commerce applies equally to the regulation of vessels employed in transporting men, who pass from place to place voluntarily, as to those who pass involuntarily. (Gibbons v. Ogden, 9 Wheat. 206-230.) Story's Const. 1387. [2.] The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or suspended? invasion the public safety may require it. Corpus be 140. The PRIVILEGE of the writ must here mean the right to Define priv. the writ. See Burrill's Law Dic., PRIVILEGE. ilege? The power to issue the writ is not the privilege; to ask for it, is Attorney-General Bates on Habeas Corpus, 5th July, 1861. 141. This privilege the President may suspend in time of such a rebellion. Id. Only in the cases contemplated by the act of Congress relative to rebellion. Id. 189. It results that the President is not obliged to answer a writ of Can the habeas corpus. Id. He is not answerable to the judiciary as Presi- President dent. Id. The courts cannot revise his political actions. Id. suspend it? 204. 141. HABEAS CORPUS-No doubt it means here to have the Define body; or the writ then known as the habeas corpus, ad faciendum, Habeas subjiciendum, et recepiendum, to do, submit to, and receive whatso- Corpus! ever the judge or court awarding the writ shall adjudge in that behalf. 3 Bl. Com. 131; 2 Kent's Com. 22; Steph. Com. 135; Burrill's Law Dic., HABEAS CORPUS; Story's Const. § 1339. These authors give the several writs. As a co-ordinate power of the government, the President could not be made amenable to this writ, for military arrests made during the rebellion. Id. 140. the defini For the meaning of the term Habeas Corpus resort must be had Where must to the common law; but the power to award the writ, by any of we look for the courts of the United States, must be given by written law. tion? (Bollman, Swartwout's Case, 4 Cr. 93); Bates on Habeas Corpus; Story's Const. § 1339. And the writ means the writ ad suljiciendum. (Luther v. Borden, 7 Howard, 1; Fleming v. Page, 9 How. 615; Cross v. Harrison, 10 How. 189; Santissima Trinidad, 7 Wheat. 305; Martin v. Mott, 12 Wheat. 29. Id. It matters little whether it be called the peace or war power. Id. It is a writ of right, which every person is entitled to, ex merito justitiæ. (4 Inst. 290.) 2 Kent's Com. Lect. XXIV. p. 26. This lecture fully discusses the subject. And see Yates v. Lansing, 5 Johns. 282, and 6. Id. 387; Story's Const. The writ was never suspended except by the act of 12th March, 1863, 12 St. 755; 2 Brightly's Dig. 196; Story's Const. § 1342; 2 Jeff. Cor. 274, 291, 344. It would seem, as the power is given to Congress to suspend the writ in cases of rebellion or invasion, that the right to judge, whether the exigency had arisen, must exclusively belong to that body. (Martin v. Mott, 12 Wh. 19.) Story's Const. 1342. is denied in the opinion of Attorney-General Bates to President Lincoln. This When was it first suspended? 140. Courts issue the writ? The federal courts have power to issue the writ of habeas corpus When may only when necessary in aid of their jurisdiction, in a case pending, the Federal Ex parte Everts, 7 Am. L. R. 79; overruling United States v. Williamson, 4 Id. 11. The case of a father claiming the custody of an infant child, is not one in which a habeas corpus can issue, by a court of the United States, as ancillary to the exercise of its jurisdiction. Id. Nor can a circuit court issue such a writ, although the father be a citizen of another State, as the matter in dispute is incapable of a pecuniary estimation. Id. A habeas corpus issued State by a State court has no authority within the limits of the sovereignty of the United States. If served on a marshal having a What is the prisoner in custody, under authority of the United States, he power of the should, by a proper return, make known the authority by which he holds him; but, at the same time, it is his duty not to obey the Courts? State process, but to execute that of the United States. Ableman v. Booth, 21 How. 506. The federal courts have power to apply the writ of habeas corpus to all cases which it would reach at common law; provided it be not issued to any person in jail, unless confined under and by color of the authority of the United States. Ex parte Des Rochers, 1 McAllister, 68. A State court, on a writ of habeas corpus issued at the relation of one committed on process from a federal court, cannot go behind the commitment and inquire into the grounds of it. Williamson v. Lewis, 18 Leg. Int. 172. The privilege of the writ of habeas corpus can only be suspended partment of by act of Congress. Ex parte Merryman, 24 Law Rep. 78; 9 Am. the govern- L. R. 524; Jones v. Seward, 3 Gr. 431. But see McQuillan's Case, can suspend 9 Pittsburgh Leg. I. 27; 27 Law Rep. 129; and Bates on Habeas Corpus. The federal judges have exclusive jurisdiction on habeas corpus, whenever the applicant is illegally restrained of his liberty, under or by color of the authority of the United States, whether by virtue of a formal commitment or otherwise. What de ment only the writ? What is the over persons ice? Ex parte McDonald, Am. L. R. 662. Much diversity of opinion power of the appears to exist, as to the power of the State courts to discharge, State Courts on habeas corpus, a person illegally held in the military service of held in mil- the United States. Some judges hold that the State courts have itary serv- jurisdiction to discharge one enlisted contrary to the acts of Congress. Wilson's case, 18 Leg. Int. 316; Dobb's Case, 9 Am. L. R. 565; Commonwealth v. Carter, 20 Leg. Int. 21; Henderson's Case, Id. 181; Webb's Case, 10 Pittsburgh Leg. I. 106; contra, Phelan's Case, 9 Abbott, 286. And in Carney's Case, Chief-Justice Lowrie discharged a person from military arrest, who, after having been exempted from the conscription by the board of enrolment, was arrested on the pretext that they had reconsidered their decision. 14th August, 1863, MS. On the contrary, it has been held that the State courts have no jurisdiction to inquire into the validity of the draft on habeas corpus. Spangler's Case, 11 Am. L. R. 596; Jordan's Case, Id. 749. And that they have no power to discharge from the custody of the provost marshal one held for desertion, though enlisted contrary to law. Shirk's Case, 3 Gr. 460. This, however, was said by Leonard, J., in the Supreme Court of New York, to be founded on a misconception of the case of Ableman v. Booth; and Barrett, having been illegally enlisted, was discharged, notwithstanding a charge of desertion. Barrett's Case, 12 Pittsburgh Leg. I. 90. See also Follis's Case, 19 Leg. Int. 276; United States v. Wright, 20 Id. 21; McCall's Case, Id. 108; Commonwealth v. Rogers, 10 Pittsburgh Leg. F. 178; Stevens's Case, 24 Law Rep. 205; Ex parte McDonald, 9 Am. L. R. 662; United States v. Taylor, 20 Leg. Int. 284; In re Hicks and Archibald, 11 Pittsburgh Leg. I. 25; Com. v. Wright, 3 Gr. 437. In Vallandigham's Case, Judge Leavitt refused an application for a writ of habeas corpus, on the ground that the imprison power? ment was under military authority, and that, although a civilian, he And when was held for trial before a military commission, for disloyal prac- held by the military tices; the country being engaged in war, and the military necessities requiring that the power to arrest parties under such circumstances should be exercised by the President, as commander-inchief. Vallandigham's Trial, 259. Where a prisoner is held on original federal (not judicial) process, the State courts have concurrent jurisdiction with those of the United States, to inquire into the legality of the detention on habeas corpus. Bressler's Case, 3 Gr. 447; citing 10 Johns. 328; 7 Cow. 471; 5 Hill, 16; 2 South, 555; 12 N. H. 194; 11 Mass. 63; 24 Pick. 267; 7 Cush. 285; Barr. 336. The State judges have no power, on habeas corpus, to inquire into cases of commitment or detainer, under the authority of the federal government. Hopson's Case, 12 Am. L. R. 189. A return to a habeas corpus, by a provost marshal, that the prisoner is held as a deserter from the army, under the authority of the United States, is sufficient, without the production of the body; the State courts having no jurisdiction to inquire into the truth of the fact alleged in the return. Id. The proceedings on a writ of habeas corpus in the federal courts, are governed by the common law of England as it stood at the adoption of the Constitution, subject to such alterations as Congress may prescribe. Ex parte Kaine, 3 Blatch. 1. See Ex parte Aernam, Id. 160. By the act of 3d March, 1863, § 1, 12 Stat. 755 (2 Brightly, 196), Give the it is declared:" During the present rebellion, the President of date and the the United States, whenever, in his judgment, the public safety may the act to language of require it, is authorized to suspend the writ of habeas corpus in any suspend the case throughout the United States, or any part thereof." Upon a return to a writ of habeas corpus, that the relator was held by virtue of an order issued by the Secretary of War, by direction of the President, for endeavoring to prevent, and discouraging enlistments in the army, and that the privilege of the writ of habeas corpus had been suspended by the President, the writ was dismissed without inquiry into the validity of the arrest, or the legality of the cause of complaint. Kulp v. Ricketts, 3 Gr. 420. And see Vallandigham's Trial, 259. writ? On the 15th September, 1863, the President, by proclamation, And the President's suspended the privilege of the writ of habeas corpus, during proclamathe rebellion, throughout the United States, in all "cases when, tion? by the authority of the President of the United States, the military, naval, and civil officers of the United States, or any of them, hold persons under their command or in their custody, either as prisoners of war, spies, or aiders or abettors of the enemy, or officers, soldiers, or seamen, enrolled, drafted, or mustered or enlisted in or belonging to the land or naval forces of the United States, or as deserters therefrom, or otherwise amenable to military law, or the rules and articles of war, or the rules or regulations prescribed for the military or naval service by authority of the President of the United States, or for resisting a draft, or for any other offense against the military or naval service." In Commonwealth ex rel. Cozzens v. Frink, on habeas corpus, before Judge Thompson of the Supreme Court of |