§ 239. More recently this doctrine was affirmed in the Legal Tender Cases (U. S. 110, 447). An extract from the opinion by Mr. Justice Strong, in the above case, is quoted in paragraph 117, a portion of which is again cited. "Congress has the power," says Mr. Justice Strong, "to issue the obligations of the United States in such form, and to impress upon them such qualities as currency for the purchase of merchandise and the payment of debts, as accord with the usage of sovereign governments."

§ 240. An extract from the opinion of the Court in the case of Hepburn and Griswold may illustrate the distinction between the contending opinions as to the scope of the powers of Congress. In that opinion Chief Justice Chase said: "We are obliged to conclude that an act making mere promises to pay dollars a legal tender in payment of debts previously contracted, is not a means appropriate, plainly adapted, really calculated to carry into effect any express power vested in Congress; that such an act is inconsistent with the spirit of the Constitution; and that it is prohibited by the Constitution."

§ 241. The doctrine of Chief Justice Marshall and the doctrine announced by Mr. Justice Strong seem to be this:

The Court cannot restrain Congress in the exercise of its discretion as to the means for the execution of a specific power granted, unless in the exercise of that discretion a plain provision of the Constitution is violated. The doctrine announced by Chief Justice Chase seems to be this:

Whenever the Court shall be of the opinion that Congress has violated the spirit of the Constitution in the exercise of its discretion as to the appropriate means of executing a specific power, then it is competent for the Court to declare the law invalid.

The rule laid down by Chief Justice Marshall may now be considered as the rule of interpretation.

CHAPTER XXI.

IMPORTATION OF SLAVES.

ART. 1, SEC. 9, Par. 1.

"The migration or importation of such 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."

§ 242. This clause, by which the importation of negro slaves was tolerated until the year 1808, disappeared from the Constitution by the lapse of time. The importation of slaves was prohibited by the statute of March 2, 1807 (2 Stat. 426).

234

"The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it."

§ 243. This paragraph assumes the existence of the privilege as it had been established in England, recognized in the Colonies, and guaranteed in the charter for the government of the Northwest Territory.

§ 244. In the second article of the Articles of Confederation the privilege of the writ and the power over the privilege were reserved to the several States.

§ 245. In the case of Ex parte Bollman (4 Cr. 75), Chief Justice Marshall said, "for the meaning of the term 'habeas corpus,' resort may unquestionably be had to the common law; but the power to award the writ by any of the Courts of the United States, must be given by written law."

Hence it has happened that the same question, resting usually upon differing facts, has been before the Courts in many cases, viz.: Is there authority in the statutes of the United States for the discharge of the prisoner from custody?

§ 246. It is to be observed that the Constitution is silent as to the branch of the government that is vested with power to suspend the privilege of the writ of habeas corpus, but on the twenty-fourth day of September, 1862 (15 Stat. 730), President Lincoln issued a proclamation suspending the privilege during the rebellion as to all persons in prison by military authority. The question having arisen whether under the Constitution he could issue the proclamation, Congress passed an act, March 3, 1863 (12 Stat. 755), which conferred the power upon the President.

§ 247. On the fifteenth day of September, 1863 (13 Stat. 734), the President issued a second proclamation by which he suspended the privilege of the writ throughout the United States, as to all persons detained in custody by the military authorities. Neither in the statute nor in the second proclamation is there any reference to the first proclamation.

§ 248: From these proceedings no safe inference can be drawn as to the legality of the first proclamation.

Manifestly the power to suspend the privilege is vested in the political departments of the government, and it is manifest also that the proclamation must proceed from the President. It may well be doubted, however, whether the power is lodged in the President, for by the act of suspension not only are all the statutes of the country upon the subject rendered inoperative, but the provision of the Constitution, which assumes the existence of the privilege as the birthright of every citizen, becomes also inoperative for the time being.

This view may derive some support from the fact that the revocation of the proclamation was made in substance, although not in form, by the statute of February 5, 1867 (14 Stat. 385).

§ 249. Under the fourteenth section of the Judiciary Act of 1789, which is now in force, it was held in the case of Ex parte Dorr (3 How. 103), that the Courts of the United States had no power by virtue of the writ of habeas corpus to bring up a prisoner held in custody by a State process, except to testify as a witness.

§ 250. A conflict of jurisdiction arose in the State of Wisconsin between the Courts of the State and the Courts of the United States. (Ableman v. Booth and The United States v. Booth, 21 How. 506.)

Booth was arrested under the fugitive slave law, charged with having aided a slave to escape from the marshal, and was brought before a commission of the United States District Court. In default of bail he was detained in custody.

Upon petitions for a writ of habeas corpus, and after hearing by a judge of the State Court, the writ was granted.

§ 251. Thereupon the marshal applied to the Supreme Court of the State for a writ of certiorari, and praying that the proceedings might be brought before that Court for revision. Upon the final hearing the Supreme Court sustained the Court below.

§ 252. By writ of error to the Supreme Court of Wisconsin the case was brought to the Supreme Court of the United States.

At the conclusion of a lengthy opinion, Chief Justice Taney, speaking of the district of the United States for the State of Wisconsin said, "as regards the decision of the District Court, it had exclusive and final jurisdiction by the laws of the United States; and neither the regularity of its proceedings, nor the validity of its sentence, could be called in question in any other Court, either of a State or of the United States, by habeas corpus or any other process."

The same doctrine was maintained in Tarble's case (13 Wall. 397).

§ 253. An important question was decided in the case of Ex parte Vallandigham (1 Wall. 243), viz.: Has the Supreme Court of the United States original power, by writ of certiorari, to bring up the record of a military commission for review and judgment as to the validity of the proceedings? In the case under consideration the petitioner had been arrested by virtue of an order issued by General Burnside, then commanding the military department of Ohio, tried by a military commission, and found guilty of publicly uttering disloyal sentiments and opinions. He was sentenced to imprisonment, and at the date of the petition he was suffering the penalty.

§ 254. Mr. Justice Wayne delivered the opinion of the Court. Having first stated the distinction between the powers of the Courts of England and of the United States as to jurisdiction over military tribunals, he declared that