The suspending power and the writ of habeas corpus
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CJg' — -v-y^-C- •^ \ ,< THE SUSPENDING POWER AND €\)( Writ OF HABEAS CORPUS. PHILADELPHIA: JOHN CAMPBELL, BOOKSELLER. 419 CHESTNUT STREET. 1862. C-(Kf- '^^ THE ^ujipnuUng f outv and the 3iVtit d ^uhm (Uavjni^. The people of the United States, tliroiigli State Conventions, ordained that the Constitution should be the supreme law of the land ; and to secure the blessings of liberty to themselves and their posterity, by the 1st clause of the 9th section of the 1st Article, declared that " 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." It will be observed that this does not, nor does the Constitution elsewhere, grant this privilege to the people. It assumes that they have it. It prohibits the Government of the United States, and all its departments, under any and all circumstances, from totaWj depriving the people of this, their privilege ; but it does grant the power to suspend that privilege when, but not till, two things shall concur and have been determined by the competent authority, viz : 1. A rebellion, {or an invasion,) and 2. That the public safetT/ requires it to be then suspended. This clause grants, that, under these concurring conditions, that power may be exercised by — ivhom ? That is the inquiry. It is affirmed by some, that that power is granted to the Presi- dent, and by others that it belongs to the Congress. No one has thus far contended that it belongs to each of them, nor yet to the Judiciary. It follows that the power can be exercised only by the Congress or by the President. For the President's power it has been said : I. That the phrases, "privilege of the Writ," and "suspended" as predicated of that privilege, are expressions unknown to the common or to parliamentary law — and that "suspending the Habeas Corpus Act" is an "inaccurate expression," as the Act "was never for a moment suspended." That " suspending the privilege" (3) was a phrase ^\first used in the Constitution of the United States," hence all analogy from the English law and Constitution must be discarded. II. That a temporary denial of the privilege by a single act (founded on the authority of the Constitution) is all that is neces- sary to suspend the privilege. And as this power to deny (tem- porarily) a discharge "is an executive power," therefore to suspend the privilege is an executive power. III. That all the conditions of the exercise of the power (to suspend), that is to say, rebellion or invasion, and the requirement of the public safety in the time of either, are of executive and not of legislative cognizance. And as the power (of suspension) can only be exercised by that department which can take this cogni- zance, therefore the Executive only can exercise it. IV. That the only thing required for the exercise of this power to suspend, (given the conditions,) is an authority above the law which gives or may give the Writ ; but that authority is in this clause of the Constitution itself, therefore a legislative power is not required ; and as the framers of the Constitution did not give the power to a department not required to exercise it, hence they did not give it to Congress. V. That this power, (to be exercised only in case of internal war, viz., rebellion or invasion.) necessarily belongs to him only whose duty it is to put down the war, {i. e., rebellion,) but it is the duty of the President {only?) to suppress rebellion, therefore, this power to suspend the privilege belongs to him only. VI. Congress, by any law it might pass, could only grant an authority to the President to suspend, but that authority has already been given (to the President ?) by the Constitution ; therefore their law Avould be useless, and as the framers of the Constitution can not be supposed to have authorized Congress to do a useless act, hence they did not give this power to Congress. A gentleman, of Philadelphia, of high legal reputation, has pub- lished an argument to prove that the Convention which prepared the Constitution of the United States, meant to give to the Presi- dent, and not to Congress, the power to suspend i\iQ i^rivilege of the Habeas Corpus. These propositions are the pith of his argument, and it is in reply to them that the following remarks are submitted. In considering this subject there are certain things to be con- stantly kept in mind. They are, 1. That it is not the question whether the Government or any of its departments would, in a time of extreme peril, be excusable for suspending the Habeas Corpus, or arresting upon suspicion, or for doing any other act, 7iot tvarranted by the Constitution, but which the public safety might require. 2. It is not a question about the power of the General Govern- ment, or what it may or may not do. 3. The question is — to which of two of the departments, viz., the Executive or the Congress, did the framers of the Constitution mea7i to give the power ? 4. We may think that, upon every ground of reason and fitness, the President alone ought to have the power; but if the authors of this Constitution did not give it to him, then we dare not say he has it. 5. In seeking for their meaning we must look at the subject, not from our own, but from their point of view. Through what medium did they look at it? It was doubtless a very different one from the present, but it is nevertheless the only one through which we should view it. The clause itself has already been quoted. It has correctly been said that the sentence is elliptical; but that it may be read with the proper ellipsis, and show more clearly the sense ascribed to it, by those who argue for the President's power of suspension, let it be written thus, viz : "The privilege of the Writ of Habeas Corpus shall not be sus- pended, unless when, in cases of rebellion or invasion, the public safety may require it;" [and then the President may suspend it.^ Those who contend that the power of suspension is in the Presi- dent, do and must read that section as it is thus written; while those Avho affirm that the power is in Congress alone, must substi- tute the Congress for the President. The history of the clause has been stated with conciseness and accuracy, but as it will be referred to in the following remarks, a re-statement of it, with one or two additional facts, may aid in its interpretation. When the Convention was ready to proceed to business, Mr. Edmund Randolph, of Virginia, offered fifteen resolutions, as the basis of a plan, and Mr. Charles Pinckney, of South Carolina, offered, as the plan of the Federal Government, sixteen articles, Mr. Randolph meant by his propositions merely to introduce other and more particular ones, which would explain the outlines of the system he had in view. The plan of Mr. Pinckney seemed designed as a complete Con- stitution ; and, in its general tenor and form, it very much resembled the Constitution afterwards adopted. Article VI. related to the Legislature of the United States, and in it were grouped nearly all the powers given to, and the restric- tions upon, that department; after an enumeration of the several powers so given, it contained this clause : " The Legislature of the United States shall pass no law on the subject of religion, nor touching or abridging the liberty of the press; nor shall the privilege of the Writ of Habeas Corpus ever he suspended except in case of rebellion or invasion." With the exception of Mr. Patterson's plan, which was offered on the 15th and rejected on the 19th of June, those of Mr. Ran- dolph and Mr. Pinckney, were the only ones offered. The Con- vention, with those two plans before it, resolved itself into a Com- mittee of the Whole House, and then took up Mr. Randolph's fifteen resolutions, which, one by one, they debated and amended, till the fifteenth of June, when the Committee reported to the Convention nineteen resolutions, based on Mr. Randolph's plan. These Avere debated till July 26, when all their proceedings (ex- cept those relating to the National Executive, which they retained for debate) Avere, together with the plan of Mr. Pinckney and the resolutions of Mr. Patterson, referred to a Committee of five, or of detail, who, on August 5, reported to the Convention a plan of a Constitution, containing twenty-three articles. In the Vllth of these were classed the powers given to, and the restrictions upon, the Legislature, in like manner as in the plan of Mr. Pinckney. Art. XI. related to the Judiciary, and the 4th section of it was as follows : — " Sec. 4. — The trial of all criminal offences (except in case of impeachment) shall be in the State tvhere they shall be committed, and shall be by jury." Other resolutions were from time to time afterwards referred to the Committee of Detail, but in this, their first report, there was no clause relating to the Habeas Corpus. On the 20th of August, Mr, Pinckney submitted and the House referred to the Committee of Detail, certain propositions, one of which was this, viz : — " The privileges and benefit of the writ oi Habeas Corpus shall be enjoyed in this Government in the most expeditious and ample manner, and shall not be suspended by the Legislature, except upon the most urgent and pressing occasions, and for a limited time, not exceeding months." — Mad. Deb., 5. Ell. Deb., p. 434. This was the second time that Mr. Pinckney had, among other resolutions, offered one restraining the suspension of the privilege of the Habeas Corpus, and on the 28th of August, and when Sec. 4 of Article XI., relating to the Judiciary, was under discussion, it was amended, nem. con., so as to read: " Sec. 4. — The trial of all crimes (except in cases of impeach- ment) shall be by jury; and such trial shall be held in the State where the said crimes shall have been committed ; but when not committed within any State, then the trial shall be at such place or places as the Legislature may direct." Mr. Madison (5 Ell. Deb., p. 484) immediately adds,—" Mr. Pinckney, urging the propriety of securing the benefit of the Habeas Corpus in the most ample manner, moved that it should not be suspended but on the most urgent occasions, and then only for a limited time, not exceeding twelve months. " Mr, Kutledge was for declaring the Habeas Corpus inviolable. He did not conceive that a suspension could ever be necessary at the same time, through all the States." " Mr. Governeur Morris moved that " The privilege of the writ of Habeas Corpus shall not be suspended, unless where, in cases of rebellion or invasion, the public safety may require it." " Mr. Wilson doubted whether in any case a suspension could be necessary, as the discretion now exists with the judges in the most important cases to keep in gaol or admit to bail." The first part of Mr. Governeur Morris's motion, to the word "unless," was agreed to, yiem. con. 8 On the remaining part — New Hampshire, Massachusetts, Con- necticut, Pennsylvania, Delaware, Maryland, Virginia, — 7 voted aye ; North Carolina, South Carolina, Georgia, — 3 voted no. So this clause was, as it is expressed on the journal, "added" to the 4th section. It will be observed that in place of the word '•'•wlien'' which is noAV in the Constitution, Mr. Morris used, and the Conven- tion adopted, the word '•'■ivliere.'" This was an amendment to a section which provided for the place cohere trials should be held, and it may be that Mr. Morris intended by the word "where" to limit the suspension of the writ to the place where, in cases of rebellion or invasion, the public safety might require it to be suspended. Confirmatory of this are the words of Mr. Rutledge, which, briefly as they are reported, show that he did not think " that a suspension could ever be necessary, at the same time, through aZZthe States" — but only, of course, in a part of them ; and immediately after this, Mr. Morris moved the foregoing clause. A little reflection must have convinced him, however, that the discretion given to the sus- pending power by the latter words of the clause, would allow it to be suspended at the same time through all the States," quite as well with "where" as with "when ;" hence if the clause properly related to the Legislature, then the mover of it, and who, as the Chairman of the Committee on Style and Arrangement, changed this amendment from the Xlth Article, which related to the Judi- ciary, to the IXth Article, which related to the Legislature, would very naturally and probably substitute "when" for "where." That the words were changed is not denied ; it. does not appear that the Convention made the change, and it is therefore probable that Mr. Morris himself did it. The reason first assigned, and its influ- ence upon the meaning of the clause, will be hereafter noticed. Thus being made a part of the supreme law of the land, is this power of suspension in the President, or in the Legislature ? In the first place it has been said that " this is a political rather than a legal question, — a mixed political and Constitutional ques- tion." And what then ? Does that render the question itself easier of solution ? Call it what you will, it still recurs for an answer. What is the meaning of the clause ? Doubtless here, as elsewhere, law may be divided into that part which classifies and regulates the powers of the departments of a 9 State, considered as a body politic, and that which regulates the conduct of the citizens of the State; and questions which relate to the former you may call jioUtical questions. But what if you have not yet classified the powers of the former, or do not even know whether such departments possess a certain power, or to which one of two departments it belongs ? There must be some one tribunal to determine whether the power exists, and if so where it is lodged. Let the case be that a citizen who has been imprisoned by the mere order of the President obtains a Writ of Habeas Corpus, and his keeper in the fort or prison returns that the President has suspended the privilege of the Writ, and has ordered the detention of the prisoner, the question thus presented is, can the President suspend the privilege of that writ 1 Is that rather a political than a legal question ? or is It not the latter only, and one which the Judiciary alone can decide ? It would seem that simply to state such a case would be to answer it affirmatively. Judge Washington said of a like question — " This question does not so much involve a contest for poivcr between ( two departments of the Government) as the rights and ^^rivilcges of the citizen secured to him by the Constitution, the benefit of which he may justly claim." — 5 Wheat. Rep., 22. And more than forty years ago, Mr. Webster, in replying to a similar remark, said, in the Convention to amend the Constitution of Massachusetts, "We look to the judicial tribunal for protection against illegal or unconstitutional acts, from whatever quarter they may proceed. It is the theory and plan of the Constitution to restrain the Legis- lature as well as other departments, and to subject their acts to judicial decision, whenever it appears that such acts infringe con- stitutional limits — and without this check, no certain limitation could exist on the exercise of legislative power. The Consti- tution, for example, declares that the Legislature shall not suspend the privilege or benefit of the Writ of Habeas Corjnis, except under certain limitations. If a law should happen to be passed, restrain- ing personal liberty, and an Individual, feeling oppressed by It, should apply for his Habeas Corpus, must not the judges decide what is the benefit of the Habeas Corpus Intended by the Constitu- tion ; what it is to suspend it, and whether the act of the Legisla- 10 ture does, in the given case, conform to the Constitution ? All these questions would of course arise." " It is a rule in construing treaties," and a much stronger one in construing a Constitution, "that, from history and policy, as Avell as language, are to be gathered the views of the parties making them." — Johnson, J., G Wheat. 85. By the common law of England, every freeman had the absolute and unqualified right to the liberty of his person. To suppose that right, without the legal means of maintain- ing it, or of regaining it, would be the highest absurdity ; therefore, by the law he was entitled to be forthwith restored to his liberty ; but as he might have violated the law, and, therefore, his liberty be rightly restrained, the duly constituted Judges were commanded to inquire and determine whether he had done so or not, and as that could only be done by legal process or writ, it follows that such writ must necessarily result from, and be coeval Avith, the right itself; the party imprisoned was thus of right entitled to the writ ; which is, therefore, called by the common law a writ of right. It was not one, the granting of which depended on the favor of the King, or the discretion of the Judges, for that would have been to make his Avill or their discretion the measure of the people's rights. At the common law, even in the reign of King Alfred, the most ancient book in the law says there was no such thing as a writ of favor, for they were all remedial writs, grantable as of debt, as due of right. — (Mirror of Justice ; c. 5, s. 1.)* That the common law did not allow the people to be im- prisoned at the mere will of the King, and that they had a right to be forthwith released from such imprisonment, did not hinder the Kings of England from beating down the right, or delaying the remedy. From the time that King John ascended the throne, till James II. abdicated, there was an undying struggle between the prero- gative to imprison without bail, trial, or judgment, and the privi- lege from arrest, unless by due course of law. The ignorance and wilful disregard, by King John and his Judges, of the old and accustomed laws and rights of the people, the do- mestic injuries received from him in person, as well as from acts of * "Tlie Righ:3 and Liberties of Englisliioeu," 11 general oppression, obliged them bj force of arms to wrest from him the Great Charter. What those chief and accustomed laws were, and how they had been violated, may be learned from the Charter itself, and from the articles which they compelled him to subscribe to immediately preceding it. One of those articles shortly and forcibly expresses the right of every freeman to his personal liberty, and forever forbids his im- prisonment without due process of law. — Chap. 29. " Ne corpus liberi hominis capiatur nee imprisonetur nee dissaisietur nee utla- getur nee exuletur nee aliquo modo destruatur nee rex eat vel mittat super eum vi nisi per judicium parium suorum vel per legem terre." The like words are in the Great Charter itself. But neitlier John nor many of his successors appear to have regarded the most solemn laws, their own Charters, or even their own oaths. From the granting of Magna Charta till the time of Sir Ed- ward Coke, he declared that it had been established, confirmed, and commanded to be put in execution, by two and thirty several acts of Parliament. But history has never been able to record the un- numbered violations of that Charter, especially of its prohibition of arbitrary imprisonment. Among the devices to evade the privilege of the Habeas Corpus, and to maintain the power of arbitrary imprisonment, it was pre- tended that in the towers and castles of the King freemen might be imprisoned by the order of the King and his chief officers, as if those forts were not Avithin a county, or as if the Writ of Habeas Corpus did not run therein ; but to remedy that, even in the reign of one of the most lawless and law-suspending Kings, llichard II., it was enacted that the King's castles and gaols, which were wont to be joined to the bodies of the counties, but were then severed there- from, should be re-joined to the same counties. So intent were the people to secure their liberties entire and inviolate, that they added to the resolves of the Parliament the sanctions of the Church and of religion ; for by the fourth chapter of the Great Charter of Edward I., the archbishops and bishops were commanded to ex- communicate all those who, by word, deed, or counsel, broke that or the prior Charters ; and the clergy proposed a formal and dread- ful curse upon whomsoever should violate that, as in like manner in 12 May, 1253, the prelates of England had denounced whomsoever should break or judge against the Great Charter of Henry III. In the Petition of Right, 3 Charles I., Chap. 1,, which was pre- sented in 1628, it was stated that the people had oaths administered to them not warranted by the laws ; that Commissioners had been appointed by the King to proceed within the land, according to martial law ; that when Writs of Habeas Corpus had been sued out, the prisoners were remanded to prison upon a return that they were held by the mere warrant of the King, signified through the members of his privy council ; and these acts, and others of the like nature, were declared to be wholly contrary to law ; and the parliament demanded, and the King, failing in his attempt to evade it, was compelled to declare that these were violations of the ancient and undoubted rights and liberties of the people, and that if the alleged oflfenders had violated the laws and statutes of the land, by the same laws and statutes also, they might, and by no other they ought to, have been judged. Even this did not restrain this King, or secure the people from arbitrary arrest. By usurpa- tion and connivance, there had grown up a court called the Star Chamber, which, at first, pretended to inquire of the ofi'ences of great men and State criminals, but, on whatever pretence it was at first allowed to exercise its powers, it was soon made use of as an instrument of arbitrary power to crush whomsoever the Minis- ters and Secretaries of State and their favorites had a mind to put out of the way, or to destroy. It had no known rules or laws of procedure ; " Holding," as Lord Clarendon declared, " for honorable that which it pleased, and for just, that which profited." It disregarded Writs of Habeas Corpus, and its victims were left to linger in confinement. By the 16 Charles I., c. 10, the Parliament declared that the proceedings of that Court were contrary to the rights and privi- leges of the people, an intolerable burthen, and the means to introduce an arbitrary government ; and they forever abolished it. Still that did not put an end to the unlawful imprisonment of the people. For when Writs of Habeas Corpus were applied for, the judges many times pretended to have power to grant or deny the writ at their pleasure ; and, when they granted them, the jailors, in turn, claimed, by custom, a right to keep the prisoner till a 13 second and third Writ had been sued out, and served on tliem ; and ■when the imprisoned and oppressed subject at length got the Writ, the judges would often allege that they could not release, or even take bail for his appearance to answer his accuser, because he Avas a prisonei' of State. To debar these and the like evasions of the people's right to the Writ, and to provide a complete and effectual remedy against its obstruction, the Parliament passed the ever memorable statute of 31 Charles the II., c. 2, known as the Habeas Corpus Act. Yet, plain and stringent as were its provisions, even that did not altogether secure the people from unlawful imprisonment; for, no sooner had James the II. ascended the throne, than he claimed the power, without the consent of Parliament, to dispense with and suspend the laws and the execution thereof. For that claim the people drove him from his kingdom, and by the Declaration and Bill of Rights (which were declaratory only of the common law and the rights of the people) it w^as declared: "I. That the pretended power of suspending laws or the exe- cution of laws by Regal authority, without consent of Parlia- ment, is illegal." It was to avoid, among other things, the arbitrary seizure of their property and the imprisonment of their persons, without cause shown by the King or his officers of State, that the people emigrated to these Colonies. In the Mother Country they had claimed these chartered pri- vileges as their birth -right ; but which, being refused to them there, they came here to enjoy. Those great rights being theirs, so, too, were these great remedies; in full consciousness of their right to which, they silently adopted them as their undoubted inheritance. But as it was in England by the King, so it Avas here "the prac- tice of some of the Governors to imprison the people without bail," Indeed, in their arbitrary conduct, they often exceeded that of their royal masters ! Nor Avere the Colonial Judges be- hind either: Avitness the conduct of the Chief Justice of Massa- chusetts on the trial of the Rev. John Wise and others. Being denied the Writ of Habeas Corpus, they Avere at length put on their trial ; they claimed the privileges secured to them as Eng- lishmen by the Magna Charta and the LaAvs of England. The 14 Chief Justice, however, informed them that they must not expect "Ensrlish analoo-ies" wouhl follow them to the ends of the earth, and concluded by telling them that they had no more privileges than to he sold as slaves. — Washbourne, Jud. Hist. Mass., 116. And, in 1710, the Legislature of New Jersey was obliged to denounce Judge Pinham for corruptly refusing to Thomas Gordon the Writ of Habeas Corpus, Avhich they declared was the un- doubted right and great privilege of the subject. — Hurd, Habeas Corpus, p. 114. As the Revolutionary struggle drew on, the statesmen and people of this country saw clearly that it was the King who was pressing upon their privileges; they felt that his influence was great, was increasing, and would, if not checked, deprive them of their rights ; and they were conscious — what his- tory has since clearly revealed — that it was under the controlling influence of the King himself, that Lord North and his ministerial supporters passed those arbitrary and impolitic laws which drove a loyal people into rebellion. Inspired by his will, the Ministers pressed, and had passed, the Quebec bill, which decreed an arbitrary rule over the vast region which included, besides Canada, the area of the present States of Ohio, Michigan, Indiana, Illinois, and "Wisconsin. It denied the people the right of trial by jury, the Writ of Habeas Corpus, and left them to the French process of Lettres de Cachet, more odious than general search-warrants. This flagrant act was denounced in the several Colonies, and the Continental Congress, in Septem- ber, 1774. With the records of all history before them ; with the knowledge of what their ancestors had suffered through the power which Kings and their Ministers had claimed and exercised in arresting and imprisoning the people, "that, even in the Colonies, it had been attempted to vindicate and develop the efficiency of royal procla- mations, both in suspending laws already made, and in legislating for cases — not yet regulated by Statutory provisions." 1 Graham's Hist., p. 90. That they had just solemnly declared that, to their own knowledge, the King had suspended the passage of laws, and even the power of the Legislature itself, and that although these acts of the King had been done through a Legislature, yet they had been prompted by his arbitrary disposition, and carried out 15 by his influence and will. Their own hitter experience had shown them "with how little equity absolute power is exercised even by those who have shown themselves most prompt to resent the influ- ence of its rigor upon themselves." — 1 Graham's Hist., p. 100. Even, with their mild principles, the proprietors of Pennsylvania had lately shown that they needed but the power to play the tyrant ; and Franklin, in commenting on their conduct, had just said — '•'• Poiver^ like water, is ever working its own way; and when- ever it can find or make an opening, is altogether as prone to overflow whatever is subject to it. And though matters of right overlooked may be reclaimed and reassumed at any time, it can- not be too soon reclaimed and reassumed ; and though protection is the reason, and consequently should be the end of government, we ought to he as much upon our guard against our protectors as against our enemies.'' — 4 Gr. Col. Hist., p. 440. That was a period when the pulse of liberty beat high. "In other countries," said Burke, "the people, more simple, and of a less mercurial cast, judge of an ill principle in government only by an actual grievance ; here they anticipate the evil, and judge of the pressure of the grievance by the badness of the principle. They augur misgovern- ment from a distance, and snuff the approach of tyranny in every tainted breeze." Is it probable, then, that men, in whose minds these principles of freedom, and even of democratic freedom, were engrafted and incorporated, and who had just emerged from a struggle against the will of one man, would at once, in framing their own Govern- ment, give to one man — their Executive — a power to suspend their privileges — a power which even he, whom they had called a tyrant, could not exercise ; and not only give that power, but part with it forever to him and his successors, and thus place it beyond the control of the people, or their immediate representatives ? One class of thinkers may, indeed, be predisposed to think that most probable. For what has been said of the English Constitu- tion may, in these days, be said of our own. " Revolution and civil war have marked the influence of opposite opinions with respect to the popular nature of our Constitution. These dreadful and perilous scenes could not fail to transmit this original division of sentiment to us — their posterity. The distinc- 16 tion between those who incline to the popuhir part of the Consti- tution and those who incline to the monarchial — exists to this hour, and can cease only with the Constitution itself. The great lead- ing idea which should be formed of our constitutional history, is that there has always been a constant struggle between preroga- tive and privilege. * * Now, such being the real picture of our constitutional history, the student is, in the next place, to be reminded of the natural divisions, not only of mankind, but of philosophers, on political subjects and the manner in which they separate into two classes. Those, for instance, Avho are anxious, first and principally, for the prerogative of the Crown ; and those, on the other hand, who are zealous, first and principally, for the privileges of the people." — Smythe's Lect. on Mod. Hist., p. 87, 88. Besides, to judge correctly whether they would probably change the law in this respect, it should be considered what it then was, as finely expressed in the Commentaries of Blackstone, with which they were familiar. "Of great importance to the public is the preservation of this personal liberty; for if once it were left in the power of any, the highest magistrate, to imprison arbitrarily whomsoever he pleased or his officers thought proper, (as in France is daily practised by the Crown,) there would soon be an end of all other rights and immunities. Some have thought that unjust attacks even upon life or property, at the arbitrary will of the magistrate, are less dangerous to the Commonwealth, than such as are made upon the personal liberty of the subject. To bereave a man of life, or by violence to confiscate his estate with- out accusation or trial, would be so gross and notorious an act of despotism as must at once convey the alarm of tyranny throughout the whole kingdom ; but confinement of the person, by secretly hurrying him to gaol, where his sufi'erings are unknown or forgot- ten, is a less public, a less shocking, and therefore a more danger- ous engine of arbitrary government. And yet, when the State is in real danger, even this may be a necessary measure. But the hajjpiness of our Constitution is, that it is yiot left to the Execu- tive p)ower to determine whether the danger of the State is so great as to render this measure expedient, [or the public safety may require it?^ for it is the Parliament only, or the Legislative power, that, whenever it sees proper, can authorize the Crown, by suspending the Habeas Corpus Act for a short or limited time, to imprison without giving any reason for so doing." — 1 Blk. Com,, p. 135. It Avas highly probable that the people of the United States would greatly limit this "Legislative power;" but if it were the happiness of the English and the American Constitutions at that time, that it was not left to the Executive to determine when the danger of the State rendered the suspension expedient, is it credible that this luippy feature would be blotted out forever, and the power given to the Executive to determine "when the public safety may require" the suspension? Whether they did that or not will now be considered. "Without the adoption of this clause the Federal Government would or would not have had the power to suspend the privilege of the Writ. Let it be assumed (what is not admitted, however) that it would. It is clear nevertheless that the Judiciary could not have had it, for even now their authority to issue that Writ is given, not by the Constitution, but by the Legislature. Nor could the Presi- dent have had it, for his claim to that power is rested solely on the existence of this section; (indeed, if the power has been given to him under any other clause, it weakens, if it does not entirely negative, the presumption that it is given to him by the 9th sec- tion;) as, then, this power could not belong to the Judiciary^ or to the President^ it follows that it would belong to the Legislature. On the other hand, let it be assumed that it is this section which gives that poiver to the Federal Government, yet the like reasoning will show that it can only be exercised by the Legislature. Thus as it was by concession a power which could only have been exer- cised by the Parliament in England, or by the Legislatures of the several States, those who now attribute it to the President must show that that section contains three things — 1st. The grant of the j^ower. 2d. That those who granted it, changed it from the Legislative department in which, under the English and American Constitutions, it always had been, and but for this specific change would have remained, to the President, or Executive department of the Government; and 3d. That this power to suspend, is a limited one. B 18 Now two of those things may be found in that section. 1st, the grant of the foioer^ and 2d, a limit to the power thus granted, but that is all ; the 3d is not declared, there is not in the whole instru- ment the Djleam of an intention to change the old, accustomed and only organ of this power. It has been admitted that "the Consti- tution does not expressly say by what department of the Govern- ment this privilege is to be denied or deferred." But it is clear that a grant of the poiver, with a limit to it does no more change and make the President the organ which is to exercise it, than would the mere admission that the power existed without the grant, make Am that organ. Whether then the j^o^t^cr to suspend existed without, or is given by, that section, it does not change the organ which had theretofore exercised it. But as a general power to suspend, whether as- sumed to exist Avithout, or given only by, that section, would have enabled Congress to suspend that privilege at any time and for any cause, or even without a cause; and as the people of the United States "regarded that as a very exceptional fact, and wholly inad- missablc by them," they meant not to exclude congressional law, as some would have it inferred, but to limit congressional power ; and that they did by prescribing the conditions on which alone Congress should ever exercise the power. In other Avords, they did not change the trusteeship of this, their privilege, but they did very greatly limit the power of their trustees. Those who argue for the President's suspending power, feel themselves sorely pressed by the analogy of the English law, and the better to get rid of it they insist that suspending the privilege of the Writ, is not an English law expression ; that the word sus- 2)ended, as applied to the privilege, is not a word of the commoji law, or of any other system of laws in particular. That the phrase, the p>rivilege of the Writ of Habeas Corpus shall not be suspended, VfSLS first introduced into the Constitution of the United States, and therefore, we should not look to English constitutional history or law for the meaning of those words, or for an argument from analogy. It would be quite as pertinent to tell us to study Theology without the Bible, or American Literature without Chau- cer, Shakespeare, or Milton, or our own language without an English Dictionary, as to require us to study, or even understand that 19 part of our own Constitution, Avithout a knowledge of the j>rivile(/cs of Englishmen, and of the great charters and statutes in which they are recorded. The American colonists always claimed to possess, and the Con- tinental Congress of 1774 declared they were entitled to, all the rights, liberties, and immunities of free and natural born subjects within the realm of England. — Hurd. p. 105. " The colonists," said Chatham, "are equally entitled with your- selves to all the natural rights of mankind, and the peculiar privil- eges of Englishmen." The colonists were devoted to liberty, but it Avas to the principles of English liberty. These principles Avere incorporated into their minds, " from their extraction, their religion, the Avorks they read, and the form of their colonial governments" — ( Smythe's Lectures, 593,) the latter of Avhich Avere modeled on that of England. In 1774, Mr. Burke said of the colonies, "In no country in the Avorld is the law so general a study. * * No books save those of devotion are so generally sent from England thither than on law. I hear they have sold nearly as many of Blackstone's Commentaries in America as in England." In October, 1768, the Massachusetts Assembly resolved, "That all the essential rights, liberties, privileges, and immunities of the people of Great Britain had been fully confirmed to them by Magna Charta, and by former and latter Acts of Parlia- ment, and in a petition from the' New York Convention to the House of Commons, they said, "It is from and under the English Constitution Ave derive all our civil and reli2:ious rights and liber- ties." And Mr. Burke said, "English ^rmVg^es have made Amer- ica all that it is; and English privileges, alone, Avill make it all it can be." Of a people, Avho risked a revolution to secure for themselves and their posterity the great principles of English liberty, we could readily infer, Avhat indeed Ave knoAV, that they Avould be guided by the same principles in organizing a government for themselves, and it necessarily foUoAvs that they Avould use words and phrases like those in Avhich they had been accustomed to find these principles recorded. It Avill be found, therefore, that those Avords in the Con- stitution Avere aa'cII knoAvn to, and Avere used by, Avriters on the Common LaAV and by statesmen ; and that they Avere not singly or 20 together first used in the Constitution of the United States. Be- fore noticing the meaning and application given to them, and the arguments based on both, by those who assign the suspending power to the President — the folloAving remarks are submitted : Privilege. In the act of 31 Charles I. chap. 10, sec. 2, which abolished the court of Star Chamber, it is declared that the council table "had lately ventured to determine of the liberty of the subject contrary to the laws of the land, and the rights and privileges of the people." In the Parliament that assembled in 1640, Waller denounced certain divines as manifestly in the wrong in that which concerns the liberties and privileges of the subjects of England. In the speech made by George I. on the introduction of the Peerage Bill by the Ministers, he said, " As the civil rights and privileges of my subjects claim my concern," &c., and in his speech dissolving Parliament, in 1734, he said, "The happiness of my people depends upon my preserving to them all their legal rights and privileges, as established under the present settlement of the crown," &c. In a remonstrance drawn by Otis, in 1761, for the Massachusetts Assembly, an act of the Governor and Council was denounced as " an invasion of the most darling privilege, the right of originating all taxes." — 4 Grab., 87. 21 111 1745, Virginia resolved that the most substantial and distin- guished part of their political birth-right was the privilege of being taxed exclusively by themselves, and that they had always exercised this privilege. — 1 Grab., 203. The Convention of the Colonies, which met in New York in 1765, voted that the most essential of their liberties were the 'pri- vileges of taxing themselves and of trial by jury. — 4 Gra., 217. These and the like words, in almost every page of English and American history, show the sense in which the word privilege was used. But the framers of the Constitution used the same word in article 4, section 2, of the Constitution. " The citizens of each State shall be entitled to all privileges and immunities of citizens in the several States;" and it is fortunate that these words, and the word privilege used in the Habeas Corpus clause, have been explained by a Judge, of the tone or ring of whose opinion no one can complain. In the case of Corfield v. Coryell, 4 Wash. C. C. Rep. 380, Judge Washington said, "The inquiry is, what are the privileges and immunities of citizens of the several States? AVe feel no hesita- tion in confining these expressions to those lyrivileges and immuni- ties which are in their nature funela mental ; which belong of right to the citizens of all free Governments. * * They may all be comprehended under the following general heads: The enjoyment of life and liberty, and to pursue and obtain happiness and safety ; subject, nevertheless, to such restraints as the Government may justly prescribe for the general good of the whole. The 7^ight of a citizen of one State to pass through, or to reside in any other State, for purposes of trade, &c., to claim the benefit of the Writ of Habeas Corpus, &c., may be mentioned as some of the particu- lar privileges and immunities of citizens, which are clearly em- braced by the general description of privileges, which are deemed to be fundamental, to which may be added the elective franchise," &c. 