A
MR
REVIEW
P AM P H LE T
BINNEY S
’
.
O N
“
WRIT
P RI VI LE G E
T H E
O F H ABEAS CO RP U S
U ND E R
T H E
C O NST IT U T I O N
BY J
.
C
.
B U LLI T T
”
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.
P H I LA D E LP H I A"
J O H N C A M P B E L L,
419
C H ESTNU T
1 862
.
P U B L I S H E R,
S
T RE E T
.
I NT RO D U C T I O N
.
ll o w i n g rem ar k s t o t he c o n s id erati on of
such p er s o ns as m ay ta k e t h e tr oubl e t o rea d th e m I s ol i c i t th e
i n d ul gence o f a few w or d s o f a p er so na l c h aracter
”
Wh en M B i nn ey s pa m p hl et o n th e H abeas C o rpu s m a d e
IN
s ub m i tt i n g
t h e fo
,
.
r
its
’
.
app earance
nest en d eav o r
p o s i t i ons
,
I
i t w i th the
di ve s t m y se l f
to
w ere
rea d
exa m i ne d
u
of
t m o s t care an d
a ll e d ucat i o na l b i a s
que s t i o ns
as
w i th
of
an d
l aw ,
,
an ear
I t s p ro
.
as
far
as
p o s s i b l e i n d epen d ent ly o f th e i n fl u ence o f prec o n ce i ve d Op i n i o ns
,
T he
re sul t arr i ve d at was a c o nv i ct i o n o n
re s pect s
or
,
c ommo n
w ere
the
D u r i ng t h e
p er i o d
H
o
err o n e o u s
w i t h m an y
co mm ence d
h ave
C
ne m o re
o
t h er per s o n s as
a rev i e w
of
wh i c h h as si nce
.
T he
rp u s p a m p hl et s
t o th
o
.
preparat i o n
been p u b l i sh e d
abea s
my mi n d t h at i n m any
pre m i s e s w ere n o t w e ll tak en an d t h at hi s i n ference s
h is
c o nc lu s i o ns
In
at n um ber
it
n ow
of
hi s
e l ap s e d s e v era l
d anger
of
w o u l d h av e
t h at
,
or
l e ss vary i ng s tan d p o i nts an d
fr o m
all
of
-
,
them
so
ugh t
l egal a sp ect s
.
appears
,
I
argum ent
.
ch art i cl e s
su
rfe i t
of
d eterre d m e fr o m a ddi n g
but fo r th e fact
m o re
su
pr o du c i n g a
t h e s e p u b l i cat i o n s i t appeare d t h ey a ll v i e w e d
I h av e
.
,
u
p o n exa mi n i n g
th e m atter fro m
m i ne di ffere d
so
m e wh at
.
to
treat
I f th e fo
t he
su
bject s i m p ly an d p u re l y
ll o w i n g rem ar k s
sh
a ll
in
an y
in it s
d egree a i d
4
in e l i m i nat i n g
th e
tru t h t h at w i ll be amp l e c om pen s at i on
t i m e an d l abor best o w e d up on t h e m
rea d t h e m a can di d an d
i m p ar tia
an d aut ho r i t i e s pre s ente d
m er i t
.
l c o n s i d erat i o n of th e argum ent s
Wh et h er t h e y p osse s s
t h us m u ch at l ea s t
or n ot,
cl a i m e d
is
put fo rt h w i t h a s i ncere d es i re to pr o m o te
pre s ervati o n
can c i t i z en s
,
of
h av e
r i ghts
which I , i n
-
been taug ht
t h ose i nh er i te d fr o m
o ur
ancest o r s
,
been simp ly
que s t i on inv o l ve d i n
m i ne
wi th wh at
its
to
.
succe ss t h i s effort
Marc h 1 0 ,
18 62
.
T h e y are
.
ca u s e o f truth an d
a ll
wi t h
the m o st
It
h as
th e
A m er i
sacre d
of
is
of
t h e d ay ,
great con s t i tu t i o na l
fo r t h e
rea d er t o d eter
been atten d e d
J OH N C
P H IL AD E LP H I A,
t h ey h av e
:
occ u rrences
th e
pre s ent
true l i gh t
as
ot h er
.
Ab s ta i n i ng fr o m re fl ect i o n
s up o n
my p u rp ose h as
the
c om m o n
c h er i sh
to
an y
fo r t h e m
been attent i v e ly cons i d ere d an d care fully prepare d
the
wh o m ay
tho se
ask o f
I
.
for t h e
.
.
B U LLITT
.
R E V I E
W
.
T H E fi rst
thre e articles of the C onstitution o f the United
States treat of the three departments of the Government re
The Legi slative ; 2 The Executive ; 3 The
1
S p ec ti vel y :
Judiciary
With a view to facilitate the discussion as to the subj ect of the
Habea s Corpus to which the following remarks are addressed
such portions of the Constituti o n as are necessary for reference
will be given They are :
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A R T I C LE I
S E C TI O N 1
.
All legislative powers herein granted shall b e
vested in a Congres s of the United States which shall consis t
o f a Senate and House o f Representatives
S E C TI O N 8 The Congress shall have p o wer
T o declare war gr ant letters of marque and reprisal and
make rule s concerning captures on land and w ater
To rai s e and supp ort armies ; but no appropriation of money
to that u se shall be for a longer term than two years
To provide and maintain a n avy
To make rules for the government and r eg ulation o f the lan d
an d n a val forces
To pr o vide for calling forth the militia to execute the la w s o f
the Union s uppress insurrections and repel invasions
To provide for organizing arming and disciplining the mili
tia and for g o verning such part o f them as may be employed in
the service o f the United States
And to make al l laws which shall be necessary and proper for
carrying into execution the foregoing p o w ers and all other po w ers
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vested by this C o nstitution in the government o f the United
States or in any department o r o ffi cer thereof
S E C TI O N 9 The migration o r importation of such perso n s as
any o f the states now existing shall think proper to admit shall
not be pr ohibited by the Congress prior to the year one thou
sand eight hundred and eight but a tax o r duty may b e imposed
o n such imp ortation not exceed ing ten dollars for each person
The privilege of the writ o f Habeas C o rpus shall n o t b e sus
p ended unless when in cases o f rebellion or invasion the public
s afety m ay require it
No bill of attainder o r ex p ost fac to law shall be passed
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A M E ND M E N T S
A RTI C LE
.
III
.
No soldier S hall in time o f peace be quartered in any house
without the consent of the o w ner ; nor in time of war but in a
manner to be prescribed by law
,
,
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A R TI C LE
IV
.
The right o f the people to be secure in their persons houses
p apers and e ffects against unreasonable searches and s eizures
S hall not be violated ; and no warrants shall is sue but upon pro
b able cau s e supported by oath o r a ffi rmation and particularly
describi ng the place t o be searched and the pers on s or thi ngs
to b e sei z ed
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A R TI C LE
V
.
No p erson
shall b e held to answer for a capi tal or otherwise
infamous crime unless on a presentmen t o r indictment of a
grand j ury except in cases arising in the land o r naval forces
o r in the militia when in actual service in time of war or public
danger ;
nor be deprived of life liberty o r
property w ithout due process of law
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A R TI C LE
VI
.
In all criminal prosecutions the accused shall enj oy the right
to a S peedy and public trial by an impartial j ury o f the State
and district wherein the crime shall have been c ommi t te d which
,
district shall have b een previ o usly ascertained by law
info rmed of the nature and cause of the acc usation
,
an
d
to b e
.
w ill thus be seen that the framers of the Constitution made
very ample provision for enabling Congress to p ass all laws
which any possible contingency arising either fr o m foreign or
domestic disturbances could render ne cessary for the welfare of
the country But it is also app arent that they g u arde d with
the most sedulous care the rights of the p eople against the
exercise o f arbitrary o r unregulated power
The suspension o f the Habeas C o rpus by the E xecutive
department without the authority o f an act of C ongress has
given rise during the la s t few months to much discussion
Among the publications up o n this subj ect that which h as per
haps attracted most attention in this community is a pamphlet
“
by Horace Binney E s q entitled The Privilege o f the Writ
”
o f Habeas C orpus under the C onstitution
It is an elaborate
fort to sho w that the p ower o f suspen s ion bel o ngs under the
ef
Constitution to the Pre sident without and ex clusive of any
control or authority by C ongress
The s ubj ect is o ne of vital imp ortance to the whole people ;
an d such a publication as that Of M r Binn ey should no t pass
do w n in the constituti o nal hist o ry o f the country with o ut com
ment If fo unded in err o r it is fraught with most serious mis
chief ; if in truth discussion will only serve to bring o ut its
veri fi cation in b older relief
In construing c o nstitutional or legislative enactments certain
rules of interpretation have been adopted by which the meaning
o f the framers of the instrument o r law is to be ascertained
The fi rst o f these is the plain rendering of the language used
according to the meaning o f the w ords as under s tood at the time
o f their adoption
If fo r any reason however there is any
ambiguity in th e language then resort must be had to other
aids in arriving at the pr oper construction Among these are
the context analogy the obj ect had in view by the framers
their contemp o raneous expressions legi slative o r j udicial inter
ret a tio n the Opinions of statesmen
on
j
urists
and
text
writers
p
the subj ect ; and in fact everything whether it be historical
j uridi c al or legislative w hich can shed any light upon the subj ect
It
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Applyi ng the fi rst rule stated above i t w ould see m hardly to
a dmit o f a doubt that the Constitution reposed in Congre s s al o ne
the power to suspen d the privilege of the Writ of Hab eas Corpus
But the pamphlet under consideration endeavors by a process
to establish not only a
o f reasoning o f extreme re fi nement
denial o f the p o w er to Congres s but the vesting it in the
President It is proposed to examine the grounds u pon whic h
this doctrine rests
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I S THE C LA U S E A
O F P O WER
G RANT
OR A
,
RE S TRI C TI O N ?
The fi rst proposition o f the p amphlet is that the Habeas
C orpus clause is a grant of the p ower of suspension The lan
guage used is as follo w
“
The clause in the Constitution of the United States in
regard to the privilege o f the Writ of Habeas Corpus is this :
The privilege of the Writ o f Habeas C o rpus shall not be
suspended unless w hen in cases o f rebellion o r invasion the
public safety may r equire it
The sentence is elliptical When the ellipsis is supplied it
reads thus :
The privilege of the Writ o f Habeas C orpus shall not be
suspended unless when in cases of rebellion o r invasi on the
p ublic safety may require i t ; and then i t may be s usp end ed
“
‘
This is the necessary e ffect o f the conj un ction unless
w hich reverses the action of the preceding verb and it will be o f
p erfectly equi val ent imp ort and e ffect if the clause be transposed
‘
as follows : The privilege of the Writ o f Habe as Corpus may
be suspended in cases of rebelli on or invasion when the public
safety may re q uire it ; and it shall not be suspe nded in any other
case
Pamp
let
p
h
(
T his assumes that there was no pre existing power to susp end
o r rather that w ithout this clause no authority for its exercise
w ould have been implied from any source and that the grant o f
the p o w er i s to be found in these words only
The Constitution provides that a thing shall no t be done
except under certain contingencies This would imply that the
general p o w er w as grante d elsewhere and but fo r the clause o f
restriction it could have been exercised in all c ases to which the
general principle would apply
But the argument invert s the natural construction and con
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r eferen c es to the p a mphl et
S on
e d iti o n i s s ue d by C S her ma n
T he
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.
of
Mr
.
B i nney
are
to the
p ag es
of
the
9
verts a re s triction into a grant with a quali fi cation It is true
that thi s rule may b e and sometimes is adopted by courts in
the con s truction of statutes in order to e ffectuate the intentions
rather
o f the Legislature ; but it i s regarded as an arti fi cial
than a natural m ode o f construction The natural construction
and the c onstitutional one t oo would seem to be that this was
merely a restriction o r limitati o n o f the po w er already existi n g
o r conferred by some o ther portion of the C onstitution up o n the
department to which the re s tricti o n was applied to wit the
—
legislative that in all such cases as the privilege o f the Writ
could have been suspended but for this restricti o n or limitation
it may still be suspended during the prevalence of rebellion or
invasion when the public safety may require it Yet under
these circumstances it can only be done by the same depart
ment which would have had the p ower if the restriction had n ot
been adopted
It may be asked whether the p ower to suspend is conferre d
upon Congre s s and if s o where the authority fo r it is to be
found ? D o es it exist indep endently o f the C onstituti o n ? The
an swer is that it doe s not as C ongress has no p owers ex cept
s uch as are given by the Constituti o n
O ne c o n s truction places its derivation under the express grant
o f the p ower to Congress to regulate the courts
This was the
view entertained by Govern o r Randolph w ho w as a member o f
the Federal Convention that fram ed the Constitution and also o f
the Virginia Convention which rati fi ed it In a speech in fav o r of
“
its rati fi cati on he uses this language
But the insertion o f the
“
negative restri c ti ons has given cause of triumph to gentlemen
“
They s uppose that it dem o nstrates that C ongress are to have
“
p o w ers by implication I will meet them on that ground I
“
p ersuade myself that every exception here mentioned is an ex
c e tion n o t from general p o wers but from the p articular p owers
p
“
the rein vested To w ha t p o w e r in the General Government
“
is the exception made respecting the importation of negroes
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N o t fr o m a general p o wer but from a particular po w er
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expressly enumerated This is an exception fr o m the p ower
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given the m of regulating commerce He asks where is the
“
power to which the prohibition o f suspending the H abeas
“
C orp us i s an exception ? I contend that by virtue of the
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“
power given to C ongress to regulate courts they coul d sus
“
pend the Writ of H abeas C orp us This is therefore an
”
“
exception t o that power ( Elliott s Debates Vol III p
It i s to be obs erved that the C onstitution only confers upon
Congress the p ower t o regulate the Federal c o urts Therefore
if the auth o rity to suspend a Writ is derived from that grant it
must be limited in its application to those particular tribunals
Hence it w o uld follow that the power of suspen sion conferred
by the Constitution would be restricted to the privilege o f the
Writ o f Habeas C orpus as enj oyed under the j urisdiction and
practice o f the Federal courts alone
The State courts not being subj ect to regulation by C ongress
w ould be ex cluded from the Operation o f the p ower of suS p en
sion The j udges of the latter however can issue the Writ of
Habeas Corpus with the same force and e ffect as th o se who pre
side in the courts o f the United States Therefore if the views
of G o vern o r Randolph are correct it results that the power of
suspension granted to C ongress being limited to the Writs issued
or to b e issued by the Federal courts and havi ng no application
to the State courts the attempt to susp end the privilege could
and probably would b e rendered nugatory by the action o f the
latter Such a glaring defect cannot well be imputed to the
Constitution and while the opinion of Governor Randolph is
entitled to as much weight as that perhaps o f any o n e who has
ever expounde d that instrument it is c o ntended that in this
instance he has fallen into an error as to the clause under which
the p ower o f suspensi o n i s granted His remarks however
c ontain two prop o sition s w hich render them worthy o f much
consideration in treating this subj ect : 1 He distinctly avers
that the Habeas Corpus clause is a restriction upon p o wer
granted elsewhere and is not in itself a grant o f any p ower 2
He as decidedly declares that the po w er of suspens i on is vested
in Congress
A different interpretation and w ith all due respect for the
Opini ons of Governor Rand o lph it is suggested as being a much
more reasonable o n e is this : that the authority to suspen d the
Habeas C orpus is conferred under the p ower to provide for the
suppression of insurrection and the repelling o f invasion This
inferen ce is sup po rted by English analogy The p o w er of sus
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11
p ension was u s ually exercised under these circumstance s by
Parliament It springs fr o m the necessity recogni z ed a s ex
i s ting fo r the s u s p en sion under these circumstances and fi nally
the Habe as Corpus cla use i mplies its grant under the power
re ferred t o by pr o viding that it shall n o t be s u spende d unl e ss
when in cases of rebellio n o r invasi o n the public safety may
r e q uire it
The p o wer to pr o vide fo r the s uppres sion of insurrecti o n o r
The C on s titution restrict s the
I nva s i o n i s g i ve n to C ongres s
and the inference is
a uth o rity to s uspend to such occas ions
natural that the department charged with the d uty o f pro viding
fo r s uppression was the o n e auth o rized to wie ld this power fo r
the purpos e o f attaining the pr op o sed end The nece ssity fo r
its exerci s e upon such o ccas i o ns renders it one o f the mean s to
b e empl oyed and bring s it within the pro vi s i o ns contemplated
by that clause T he auth o rity to suspend is fi r s t give n as a
mean s of suppress ing insurrection or rep elling invasio n ; and the
r e stricti on is then put up o n this authority that it shall n o t be
“
exercised even under those c o nditi o n s except when the p ublic
”
safety may require it
” “
”
”
“
“
Susp en s io n
ins urre cti o n
nvasion
are
in
ep
arably
s
i
bound together Con s true the C o n s titution in this way a nd its
reading is si mple con s istent and natural
If then it is an error to c onstrue the Habea s C o rpus clause
all the re s t of the
a s a grant o f p ower in s tead o f a restriction
argument which is founded upon this error mu s t fall when it is
r e m o ved There might be s o me rea s on fo r as s erting that it was
a ffirmative r ather than re s trictive if there was no o ther clause
in the Con stitution under which the grant of the power of sus
pension would b e properly implied
This interpretation place s the power in the Legislati ve depart
ment and in that only and if adopted is a complete bar t o any
such clai m on the p art o f the Executive department W hether
c orrect or no t it is left for the reader t o determine wi th this
suggestion however that in o rder to understand the true mean
ing of any one clause of the C o nstit ution the whole mu s t be
carefully examined and each part read by the light o f every
o ther
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THE HI S T O R Y O F THE C LAU S E
.
But the history o f the clause is relied up o n as sustaining the
view th at it was intended as a grant o f power to the Executive
department
“
Enough
After giving that hi story the pamphlet remarks :
however is recorded t o S how that it must have been in th e
minds of the delegate s u n der at least three aspects : 1 Sus
p ensi on o f the p rivilege and not o f the Writ or Act 2 Sus
p ension by the Legislature and only by the L egislature 3
“
Suspen sion generally and by the dep artment that would be
”
intrusted in rebellio n o r invasion with the safety o f the public
This is m o st i ngeni ously put and it is foll owed by the e ffort to
S how that the department s o intrusted is the E xecutive and
therefore the power o f s uspension falls t o that dep artme nt It
is believed that thi s history does not S how that the delegate s had
in their minds a susp ensi on o f the privilege as distinct from that
o f the Writ ; o n the contrary that they regarded the s usp ens i on
ri vi le e of the Wri t a s the generic term incl uding the
of the
g
p
s us en si on of the Wri t whether as deri ved from the common
p
law o r fr om any legislative act It d o es sh o w that they contem
plated its suspensi o n by the Legi slature under certain contin
en c i es bu t it in no w i se countenances the idea that they contem
g
plated conferring the p o wer to suspend upon any other than the
Legi s lative department
T he C o nvention met in May 1 7 8 7 in Philadelphia O n the
2 9 th of May Mr Charles Pinckney o f South C a r
o lina
laid
before the House a draft of a plan of a Federal C onstitution
“
the V I th A rticle o f w hich provided The Legislature o f the
Uni ted States shall pass no law o n the s ubj ect of religion nor
“
touching or abridging the liberty of the press ; nor shall the
“
privilege of the Writ of Habeas C orpus ever be suspended
”
except in the ca s e of rebellion or invasion
O n the 6 th o f Augu s t the Committee of Detail consisting of
Rutledge Randolph G o rham Ellsworth and Wilson reported
a draft of a Constitution but i t c o ntained n o provision o n the
subj ect o f th e Writ of H abeas C orpus
O n the 2 0 th of August Mr Pinckney submitted to the House
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r
in order to be referred to the Co mmittee of D etail the fo ll o wing
“
pr o p os ition among others : The privileges and bene fi ts o f the
Writ of Habeas C orpus shall be enj oyed in this Government in
the most expeditious and ample manner and shall not b e s us
p ended by the Legi slature excep t upon the most urgent and
“
pressing occasions and for a limited time not ex ceeding
”
“
m o nths
“
O n the 2 8 th of the same month Mr Pinckney urging the
“
propriety o f securing the ben efi t of the Habeas Corpus in the
“
mo s t ample m anner moved that it should not be suspende d
“
but o n the most urgent occasions and then only for a limited
”
time no t exceeding twelve months
“
Mr Rutledge was for declaring the Habeas C orpus invio
“
late He did not conceive that a suspen sion c o uld ever be
”
“
necessary at the same tim e through all the States
“
Mr G o uverneur Morris moved that the privilege of the
“
Writ o f Habeas C orpus should not b e suspended unless when
“
in cases o f rebellion or invasion the public safety m ay
”
“
requir e it
“
Mr Wil s o n doubted whether in any case a S uspension could
“
be necessary as the di s cretion now exi s t s with j udges in m ost
”
“
imp o rtant cases to keep in gaol o r admit to bail
“
The fi r s t p art o f Mr Gouverneur Morri s s m o tion t o the
“
‘
word unless was agreed to n em c on O n the remaining part
“
the vote stood : Aye—N ew Hampshire Massachusetts Con
“
—
a
n ec ti c ut Pennsylvania Delaware Maryl nd and Virgini a
7
“
Elliott
s
N ay—N o rth Car o lina South C ar o lina Georgia
(
Debates Vol V pp 1 8 1 3 7 6 44 5
It will be perceived by a reference to the above that th e
“
delegates spoke o f the privilege o f the Writ of Habeas Cor
”
“
“
pus ,
the priv ileges and bene fi ts of the Writ o f Hab eas
”
”
“
Corpus
and the Habe as Corpus indifferently as con
the
same
general
meaning
ve in
y g
We fi n d in the letter of Luther Martin one of the ablest and
most enlightened lawyers o f his day to th e Speaker o f the
House o f Delegates o f Maryland of January 2 7 1 7 8 8 assigning
his rea sons fo r voting in the negative up o n this clause that he
“
sp eaks of su spending the Habeas Corpus A c t He says : By
“
the n ext p aragraph the General Government is to have a
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14
“
p ower of suspending the Habeas C orpus Act in cases of
“
rebellion or invasion A S the State Governments have a
“
p ower of suspending the H abeas Corpus Act in those cases
“
it was said there could be no reason for giving such a p ower
“
to the General Government since w henever the state which
“
is invaded o r in which an insurrection takes place fi nds its
“
safety requ ires it it w ill make use of that p ower ; and it was
“
urged that if we give this power to the General Government
“
it w o uld be an engine of oppr essi o n in its hands since when
“
ever a state should Oppose its views however arbi trary and
“
unconstitutional and refus e submission to them the General
“
G o vernment may declare it an act of reb ellion ; and sus
“
pending the Habeas C o rpus A ct may seize upon the p ersons
“
of those adv o cates of freedom who have had virtue and re s o
“
l uti on enough t o excite the opp osition an d may i mprison
them during its plea s ure in the remotest p arts of the Union ;
so that a citizen o f Georgia might be B as til ed in the farthest
“
p art of N ew Hamp shire or a citi z en o f New Hamp shire in
the farthest extreme o f the S outh —cut off from their family
“
their friends and their every c o nnecti o n
“
These consideration s ind uced me sir to give my negative
”
“
als o t o thi s cl ause ( Elliott s Debates Vol I p
The error of Mr Martin in S peaking o f the Hab eas C o rpus
Act taken in conne ction with the language used in the C onven
tion indicates c l earl y that the delegates had in their minds the
general propositi o n of the suspen sion of the Hab eas C orpus
and that the words as fi nally used were adopted as expressing
most appr o priately the general idea that the privilege o r bene fi t
of the Writ sh o uld not b e s uspended The words of the clause
were generic embracing the s uspen sion o f the privilege o f the
Writ whether the Writ itself was authorized by the common
la w or by legislati o n This language also m akes it apparent
that th e delegates did n ot contemplate i ts su spe n sion by any
other than the Legislative depart ment
The clau s e as fo und in M r P inc k n ey s draft o f the 29 th o f
May is the latter p art of a clause re s tricting the power of the
Legi slature as to the subj ect of religion and the liberty o f the
press , and it is but re asonable t o infer that the latter part o f the
sentence relates back to the fi r st and Operates as a restri ction
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15
up on the same department which was embraced by the preceding
restri ctive provi s ions
If there was any doubt about this it is cleared up by the
language o f Mr P i nc k n ey s proposition o f the 2 0 th o f August
which is more complete in its character and in which he use s
”
“
the words
S hall not b e suspended by the L eg is lature
It
may be then safely a ffirmed that at that time an d up to the
28 th of A ugust when Mr Pinckney again urged the propriety
o f securing the bene fi t o f the Hab eas C o rpus in the mo s t a mple
manner the o nly d ep artment in w hich it was contemplated to
vest the power o f suspension w as the Legislative This c on
nn o t be resisted when it is remembered that the only
c l us i on c a
to
that
time
expres
ly
pr
re o s it io n intr o duced u
s
o vided for
p
p p
the susp en s i o n by the Legi sl ature only It was up o n that day
that the clause substant i ally as it now stands w as moved by Mr
Morris
“
The Privi
T he clause as moved by Mr Morris was this :
“
lege o f the Writ of Hab ea s C orpus shall not b e suspended
unless when in case s of rebellion o r invasion the public safety
”
“
m ay require it
Mr P inc k n ey s original proposition w ill be
found ante page 1 2
The only s ubstantial change made in the provi s ion w as to
“
add the still further restriction ( when" the public safety may
”
”
“
require it after the w o rd invasion
It will be seen that
Mr Morri s ad o pted the original proposition o f Mr Pinckney
making the above addi tion which is immaterial as to the subj ect
matter now under di s cussion and that he contemplated the
application o f the cla us e to the same dep artment o f the Govern
ment as was embraced by Mr P inc k ney s original proposition
If not why did he adopt the same l anguage without making
some S uch change as w ould h ave excluded such a conclusi o n ?
”
“
But
says Mr Binney
no such conclusion is to b e
“
‘
drawn because the word Legislature used by M r Pinckney
“
in the beginning of his fi rst prop o sition was stricken out by
”
Mr Morris
It is a mistake t o say it was stricken o ut for i t
was in Mr P in c k ney s original propo s iti o n only by relation to
the fi rst part thereof and the clause is now found in the C on
s ti tuti on under that head which treats o f the Legislative depart
ment of the Government and immediately succeeding the
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16
r e striction up o n the p ower of C ongress to prohibit the migr ation
o r imp ortation of certain persons therein referred to j u s t as Mr
P in c k n ey s o riginal clause connected it with the pre cedent
restriction upon the Legislature as t o the freed om of c o nscience
and o f the pres s and is immediately foll o w ed by the restriction
upon the power of C ongress to enact bill s of attainder or ex p ost
fac to laws ( See c lause ante p
The original pr o position
o f Mr Pinckney followed an d w as in the same clau s e with the
prohibition upon the Legislat ure to pass laws o n the s ubj ect of
religion o r ab ridging the liberty of the pre ss The po sition o f
the present clause is in Article I which treats of legislative
power s and legislati ve restrictions and is both preceded and
follo w ed by such restricti o ns It b ears the same relation to the
”
“
w o rd Congress in the fi rst clause o f S ection 9 A rticle I
”
“
w hich Mr P in c k n ey s clause bore to the word Legislature
in his fi rs t proposition With what S ho w o f plausibility can it
b e argue d that M r Morris intended to abandon Mr P in c k n ey s
original pr op os ition ?
But Mr B inney further contends that as Mr Morris made
the moti o n and it was adopted by the Convention as an amend
ment to the fo urth secti o n o f th e X I th Ar ticle of the C o nsti tu t i o n
as it had been reporte d by the C ommitte e o f Five on the 6 th o f
August which was the Judiciary Article therefore the inference
is expressly negatived that it was the Legislative department t o
w hich the cla use was to apply The reasons which induced Mr
Morris to attach the clause to the Judiciary Article cannot now
b e certainly state d Yet as that c lause provided fo r the trial of
crimes in the states where they w ere c ommittedfand that such
trial should b e by j ury it is pr obable he at fi rst pr o p o sed to
attach it t o that section as b eing c o gnate an d in a legal p oint of
view connected with it
The fo urth section o f the K Ith Article
r eferred to is substantially the same as the third clause o f the
second section of the C o nstitution as fi nally adopted
A furth er ex amination o f the hist o ry o f the clause will S how that
the inference referred to is no t only n o t expressly negatived
b ut o n the contrary is str o ngly supported by it The C onven
tion having dis cussed and ad opted the articles and sections
separately and in detail o n the 8 th of September 1 7 8 7
it w as
“
moved and seconded to appoint a committee of fi ve to revise
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18
“
D ecember 22d 1 8 14 s peaki ng o f the Constitution
That in
”
strument w as w ritten by the fi ngers w hich write this letter
Mr Madison says
The fi nish given t o the style and arrange
”
ment of the Constitution fairly belongs to Mr Morris
8
t
h
Letter
to
Mr
Sparks
April
(
With these facts before us it can be a ffi rmed w ith the utmost
con fi dence that Mr Morris did not intend to abandon Mr
P inc k n ey s proposition as to the department upon which the
restriction w as imposed but on the contrary that he placed it
in such a position and under such cir cumstances as to rem o ve
every possible doubt that his purpose w as t o apply it to the
Legi slature
Upo n examini ng the history of the clause and the C o nstitu
tion as it no w stands the reader will be prepared t o j udge of
the force o f the extraordinary remark t o be found o n p age 3 2
the present p osition of the clau s e in the
of the pamphlet th at
”
Constitution is not of the least imp ortance
O ne o f the rules laid down by Blackstone for interpreti n g the
w ill o f the Legislature in a case o f doubt is to examine the con
text The history of legislation m ay also b e brought fo rward
in order to C lear up any ambiguity in respect thereto If there
could be any doubt as to the true con struction of the clause in
question its position w ith reference to other p arts of the C on
The m anner in
s tituti on is necessarily a subj ect o f consideration
which it was placed in i ts present location is also entitled t o very
great w eight That excludes the possibility of its having fallen
there by accident I t is w edged in b etween t w o clauses which
hold it fast and control it It is i nseparably connected with the
See
fi rst and it is the link w hich binds the third to the fi rst
(
the three clauses ante p
It will b e perceived that as the clause immediately precedin g
the one in question is a direct prohibition upon Congress and i s
the fi rst restrictive clause and as the clause succeeding it is
confessedly also a restriction upon Congress but without again
introducing the w ord C ongress it necessarily relates back t o the
fi rst clause of the section and through the Habeas Corpu s clause
and thus brings do w n the w ord Congre ss through the Habeas
Corp us clause and as an inseparable part o f it O ther wise it
w ould have been requisite to reintroduc e the w ord C ongress
of
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19
for the proper construction of the sentence ; that is the w o rd
having been used in the fi rs t clause and dropped in the sec ond
it would nec e ssarily have been reproduced in the third The
failure so to reproduce it proves that it was not dropped in the
s econd but was implied in reference to that as w ell a s the third
It is pro bably the fi rst time in o ur history that an able and
o positio n that the
rofound
lawyer
has
gravely
advanced
the
pr
p
“
present po s ition o f any clause in the C onstitution is no t o f the
”
“
least importance
H o we ver the fact m ay be as to any other certainly s u ch an
a s s ertion as t o the Habeas C o rpus clause by o ne wh o se reputa
tion fo r learning and acumen in his professi o n w as at all ques
t ionabl e w ould argue a degree of boldness b o rdering very closely
upon temerity
It i nvolves the reflection upon the framers of that instrument
o f their having been s o reckless as t o the e ffect o f their work
a n d so fai thless to the tru s t c o n fi ded to them
that they pitched
this most important s afeguard to the liberties o f the peopl e
hap hazard into the Constit ution without caring w here it chanced
to fall
F o rtunately the hist o ry of the man ner in which it reached its
present position repels any such im putation It shows that
they had an intelligent understanding of w hat they w ere doing
a nd that they executed their purpose in the way most conducive
to the pr o tection and preservation of the liberties o f the p eople
That purpose w as to place the restricti o n upon the exercise
o f the p ower o f suspension upon the Legislative department to
which only the power was con fi ded and it was so effected as to
exclude all possibility of implication that any such a ut hority was
intended to be conferred upon any o ther branch of the Govern
ment Looki ng then to the history and po sitl on o f the clau s e
it is clear that the restriction is applicable to Congress and that
necessarily involves the premise that they alone are inve s ted
with the power o f suspension
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V
IE WE D IN THE
I HT O F A U TH O RIT Y
L G
.
Anoth er light in which the p amphlet vie w s this question is
that of authority —the language is this :
,
20
“
The question of the po w er of C ongress over this matter has
never been decided a uthorit atively and i t has never bee n
argued with any care or perhap s argued at all by a court o r
“
by c o unsel in c o urt So far as authority goe s it is a questio n
There pr obably has been and still is
o f fi rst impression
s tr o ng professional bias in fav o r o f the power o f Congress
“
perhap s a jud i c ia l bi as if that be possible It was no t easy
t o avoid the bias under the influence of Engli s h analogy which
some preceding remarks w ere intended t o disqualify ; but
”
there is nothing on the p oint th at is j udicially authoritative
Pamphlet
p
(
It then proceeds in the most summary manner to brush
away th e Opinion of Chief Justice Taney in the Merriman case
Leaving the Opinion of the Chief Justice t o stan d upon i ts
o wn merits it is p rop osed t o inquire how far it i s true that
”
there is nothing on the p oint that is j udicially auth oritative
In Ex parte Bollman and Swart w out 4 Cran c h 1 0 1 Chief J us
“
tice Mar shall holds this language If at any tim e the publi c
safety should require the s us p ension of the p o wers vested by
this act in the court s of the Uni ted States it is for the Legis
l ature to s ay so
That que s tion depends on political considerations on which
the Legislature is to decide Until the legislative will be
expressed this C our t c an only see i ts duty and mu s t ob ey
”
“
the l aws
This is certainly the very highest j udicial auth ority But i t
”
altogether obiter an d is no authority
is said that this w as
”
“
It is worthy of c onsideration whether even an obi ter o f
Chief Ju s tice Marshall upon such a question w ould n o t be good
auth o rity He S poke neither lightly n or loosely A revie w of
the case will S ho w th at he c ould n o t have sp oken without refl ec
tion
In the latter p art O f 1 8 0 6 Burr s c onspiracy reached its cul
minati o n Gen Wilkinson with a vie w of strangli ng it in i ts
early stages had arrested c ertain p ers o ns in Ne w O rlean s as
emissaries of Burr and accomplice s in hi s treas o n T wo of
them Bollman and Swartwout w ere sent by him to Washing
ton City under arr e st O n the 2 2d of January 1 8 0 7 Mr Jef
fers on then President , sent a me s sage to Co ngress detailing the
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21
facts O n the 23 d Of January a bill was passed by th e S en ate
suspending the privilege o f the Writ of Habeas Corpus fo r three
m onths in cases of perso ns charged with treason o r other high
crime o r misdemeanor endangering the peace safety or neu
t ral ity o f the U nited States who had been o r sh o uld be arre s ted
o r imprisoned by virtue o f any warrant o r auth o rity o f the Pre
s id en t o f the Unite d States o r from any p erson a c ting under
the direction or authority o f the President
O n the 26 th o f January the bill was communi c ated by the
Senate t o the House
A motion was made by Mr Eppes to rej ect it —the purp ort
of this motion being that the bill was S O infamous as n o t t o b e
worthy o f consideration This was warmly and ably disc uss ed
and upon the vote bei n g taken on the question
Shall the bill
”
b e rej ected ? the vote was —yea s 1 1 3 ; nays 1 9 ( Benton s
Debates V ol I I I p
A reference t o these debates will S ho w that the subj ect was
thoroughl y examined It was di s c ussed as to the p ower o f C o n
gress under the Habeas C orpus clause —the proper constructi o n
o f that clause —the right of the President to cause p ersons to
be arrested in o n e district and tra nsported to another —
the sub
ordination o f the military to the civil power and the pr opriety
of endeavoring to protect those who had made the arrests from
civil liability therefor by an ac t o f C ongress legalizing what
had been d o ne
In Februa ry 1 8 0 7 the m otion was made in the Supreme
C ourt of the United States at Wa shingt on City for the Habeas
C orpus in the cases o f Bollman and Swartw o ut Up on this
motion a most elaborate argument was had upon the p o wer and
j urisdiction of the Court to issue the writ Upon the 1 3 th of
February the m o tion was granted and th e Opinion o f the Co urt
was delivered by Chief Justice Marshall It was in the cl o sing
part of his remarks an d a s a concl usive answer t o all th e
obj ections ma de to the i s sue of the writ that the Chief Ju s tice
uttered the language cited a n te p 2 0
It is quite evident fr o m what fell from J o hnson Justice in
his di s s enting Opinion upon the moti on that the character o f the
transaction as it related t o the action of the E xecutive did not
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22
escap e the attenti o n of co unsel and it is almost certain that it
was strongly pressed up on the Court in the i r speeches
“
He says in referr i ng t o the case of Burford I did n o t then
“
c omment at large on the reasons which influenced my o pini on
“
and the cause was this : the gentleman who arg u ed that cause
“
con fi ned himself strictly to those c onsiderati ons which ought
“
al o ne to influence the decisions of this C ourt No popular
“
o bservations o n the necessity o f protecting the citiz en fr o m
“
E xecu tive Oppression ; no animated address calculated to enlist
“
the passions o r prej udices of an audience in defe n ce o f his
”
moti o n imposed o n me the necessity of vindicating my opinion
Ex
p
arte
B
o llman
Swartw
o ut 4 th Cranch p
(
These remarks could have reference o nly to the manner in
which counsel had pressed the illegal and unauthori z ed action
o f the Executive department in the matter o f the arre s ts
It
i s proper to remark that his dissent was simply predicated up on
the want of p ower in the Court sitting as the Supreme C o urt to
i s sue writs of Habeas C orpus He did n o t deny the p o wer to
the j udges when h olding the Circuit C ourts The writ being
issued and return made t o it a thor o ugh d isc ussI o n was again
h ad upon the q uesti o n whether the prisone rs were law fully de
O n the 2 1 st o f February they were discharged
t ain ed or not
the Chief Justice again delivering the Opini o n of the C o urt
The discus si o n in C ongress the p a s sage by the S enate o f a
bill the obj ect o f which was to legaliz e the arre s ts and tran s
o rt ati on of B ollman and S wartw o ut and the elaborate argument
p
the imp o rtance of the que s tions involved and the
o f counsel
anxiety o f the friends o f the E xe cutive to obtain l egal jus tifi c a
tion fo r what had been done fo rbid the suppositi on that s o
imp o rtant an aspect of the mat t er did not present it s elf as that
o f the department in which the power o f susp ensi o n was rep o sed
Had the C ourt decided that the p ower o f suspension under
the Constitution resided in the E x ec utivd then acc o rding to
Mr B inney s argument the question could ea sily have been
settled and the President would have been relieved from the
necessity o f re so rting to such indirec ti o n as an A c t o f C ongre ss
fo r legal j usti fi cation
F o r 1 s t The President could have decided that Burr s con
w
as
insurrection
In
fact
Mr
Bid
w
ell
in
his
S ira c
p
y
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23
“
speech says he had done so
The fi rst inquiry w ould naturally
“
turn upon the existence of a rebellion O n that point he had
“
The public notoriety of the fact was
n o doubt
“
p erhaps su ffi cient evidence for the Legislature to act up on if
“
necessary ; but they had also the o fficial statement o f the
”
“
Pre sident to that effect
Benton
s
Debates
Vol
I
II
(
p
2 d The President had only t o de c ide that the public safety
required the suspension and he and his friends w o ul d have
been fully protected
T o suppose that th i s point could have escaped Mr Je fferson
and his friends if there had been a S hado w o f fo undation for
it is to impute to them a degree of dulness not Often met w ith
in advocates o f E xecutive power
The fact i s that all p arties then concurre d in the opinion
that the p o wer resided in C ongress alone ; and it is quite evi
dent that the Constitution was most carefully examined as to
the wh ole s ubj ect
If the principle now contended for s o earnestly had any sem
blance o f authority it could not have been overlooked for it
lay at the very threshold of the investigation
The subj ect matter had grown o ut of arrests by the military
power and transportation to a di fferent district fr o m that in
whic h the arrests had b een made
The President had adopted
the acts o f his o ffi cer
Chief Ju s tice Marshall examined the C onstitution in referen c e
to the cases before him He fo und that the p o w er o f susp ension
w as s o clearly in Congress that it needed no argument an d he
simply stated it as a proposition too plain for d o ubt The
ex amination of the case by any unbiassed mind can arrive at n o
other conclusion I n this Vie w of the matter the O p l Il l O Il o f
Chief Justice Marshall is in the highest degree j udicially autho
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ri ta tive
,
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In J o hnston Duncan et al 1 Martin s Louisiana R pp
1 5 7—
1 6 7 the question as to the legality o f the martial law
establi shed by General Jacks o n in New O rleans during the
memorable winter of 1 81 5 came up before the Judges o f the
Supreme C ourt of L ouisiana
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24
Judge M artin in delivering his Opinion said : This leads me
“
to the examination o f the power to suspend the Writ of Habeas
“
Corpus and that which it I s sa i d to include of proclaiming
“
martial law as noticed in the C onstitution of the Unit ed
States A S 1n the whole article cited no mention is made o f
“
the p o wer of any other branch of the Government but the
“
legislative it cann o t b e said that any of the limitations which
“
it contains extend to any of the other branches I ni quum
es t
orimi d e fac to id d e
If
therefore
u
o
c
o
i
t
a
t
u
m
n
o
es
t
n
p
g
q
“
this susp ending power exist in the E xecutive ( under whose
“
authority it has been attempted to exercise it" it exi s ts with o ut
“
—
any limitation then the President pos s esses without a limita
tion a po w er which the Legislature cannot exercise without a
“
limitation Thus he p ossesses a greater power a lon e than the
House of Representatives the S enate and hi mself j o intly
“
Again the power o f repealing a law and tha t o f susp ending
“
it ( which is a partial repeal " are legislative p o wers F or
eod em mod e
c on strui tu r eod em mod o d es tru i tur
u
u
id
As
o
q
q
every legislative power that may be exercised under the C on
“
S tituti on is exclusively vested in Congress all others are re
”
t ained by the several States
“
Judge D erbigny says : The C onstitution o f the United States
in which everyth ing necessary to the eneral and individual
g
security has been foreseen does not provide that in times of
“
public danger the E xecutive p o wer shall reign to the exclu
sion of all o thers It does not tru s t into the hands of a dicta
“
tor the reins o f government The framers of that Charter
“
w ere too well aware of the ha z ards to whic h they would have
“
exposed the fate of the Republic by such a provi si o n : and had
“
they done it the States w o uld have rej ected a Con s titution
“
stained with a clause S O thr eatening to their liberties In the
“
meantime conscious of the necess ity of removing all imp edi
ment s to the exercise o f the E xecutive power in ca s es of re
bell ion o r invasion they have permitted Congre s s to sus pend
“
the privilege o f the Writ of Habeas C o rpus in those circum
stances if the public s afety should require it Th us far and
”
no farther goes th e C onstitution
The decision of the C ourt was in ac c ordan c e with these vie w s
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26
“
exercised by Congress
’
Hurd
on
Habeas
C
orpu
s
(
.
ages
p
,
1 33 ,
“
This clause provides for the suspension of the Writ o f
“
Habeas Corpus only in cases of rebellion or invasion when
“
the public safety requires it ; but C ongress has never sus
”
pended the Writ since the Constitution went into operati on
The
onstit
u
tional
Text
book
by
Furman
Sheppard
pub
C
(
l ished in 1 8 5 6 p
These are the Opinions of eminent lawyers and one of the m
a most distinguished Judge given at a time when they were
certainly free from any political bias They are valuable not
merely for that reason but also b ecause they are the concur
rence of the minds o f impartial commentators lo oking at the
questi o n with no other motive tha n to search for truth and they
evidence the fact tha t no other V iew had ever been taken p rior
to the present day
But there is a current of authority found in the Opin i ons
expressed by the statesmen of the day when the Constitution
was adopted and running down through the hi s t o ry o f the
Government to within a very re cent period which is p erhaps
more p otential than any other
In the Massachusetts C onventi o n called to determine whether
the Constitution should b e rati fi ed o r not the Habeas Corpus
clause b eing under considerati o n on the 26 th of January
“
1788
Dr Taylor asked why thi s darling privilege was not
“
expressed in the s ame manner a s in the C onstituti o n o f Massa
“
c hus etts ?
He remarked o n the di fference of expression ,
“
and aske d why the time was n o t limited ?
“
Judge D ana said : The answer in part to the honorable gen
“
tl eman must be that the same men did n ot make both Consti
“
tuti ons ; that he did not see the necessity o r great bene fi t o f
“
limiting the ti me supp o sing it had been as in o ur Constitution
‘
not exceeding twelve months ; yet as o ur Legislature can
“
so might C ongress continue the su sp en si o n of the Writ from
“
year to year The safest and best re s tricti on therefore
“
arises fro mt he n atu re of the cases in which C ongress are
“
authori z ed to exercise that p o wer at all n amely in th o se of
“
rebelli on o r invasion These are clear and certain terms facts
“
o f public notoriety ; and whenever these shall cease to exist
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27
“
the susp ension of the Writ must necessarily cease also H e
“
th ought the c itizen had a better se c urity for his privilege of
“
the Writ o f Habeas Corpus under the Federal than under
“
the State Constitution ; fo r o ur Legislature may su spend the
“
‘
Writ as often as they j udge the most urgent and pressing
occasion s call for it
“
Judge Sumner said that this was a restric ti on on C ongress
“
that the Writ o f Habeas C orpus should not be suspended
“
except in cases o f rebellion or invasion The learn ed Judge
“
then explained the nature o f the Writ
The privilege
“
he said is essential to freedom and therefore the power to
“
suspend it is restricted O n the other hand the State he
“
said might be involved in danger ; the worst enemy may lay
“
plans to destr oy us and so artfully as to prevent any evidenc e
“
against him and might ruin the country without the p ower
“
to suspend the Writ was thus given
Congress have only
power t o suspend the privilege to persons committed by
‘
their authority A p erson committed under the authority of
‘
2d
the States will still have a right to the Writ
Elliott
s
(
Debates
In the act o f rati fi cation by the C onvention of New York is
this remarkable clause among others explanatory of their under
“
standing of the C onstitution : That every person restraine d of
his liberty is entitled to an inquiry into the l awful ness o f such
“
restraint and t o a removal there o f if unlawful ; and that such
inquiry and removal ought not to b e denied o r delayed except
whe n on account of public danger the C ongress shall suspend
"
the privilege of the Writ of Habeas C orpus
“
Under these imp ressions and declaring that the rights afore
s aid cannot be abridged or vi olated and tha t the exp lanati ons
afores ai d are c o ns i s ten t wi th the s a i d C on s ti tu ti on
we the said d elegates in the name and o n behalf of the p eopl e
o f the State o f New York
do by these presents a ss ent to and
”
“
ratify the said Constitution ( Supplement to Journal o f the
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c o ncl usiv e tha n thi s i s As to the und e rsta nd i ng
a nd i nt e nti o n o f the fra me r s o f the C o ns tit uti o n
T hi s acti on of the C onven
ti o n i s in it s elf a c ompl ete a ns w er to the elab o rat e arg ument und er c o ns i d era
ti o n NO i ng e nuity c an my stify it NO c ontrov ers ial skil l c an w eak en o r
d estroy i ts forc e
NO
p ro o f
c an
be mo r e
.
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.
28
1 8 19,
Federal Convention published in Boston in
,
pp
.
42 8
and
The Convention of Rhode Island also r ati fi ed the C on s titution
with certain explanatory declarations ; am ong the m is the fol
l owmg
:
“
VII That all power o f su spending laws or th e execution
o f laws by any authority with o ut the consent o f the re re
p
s en ta tive s o f the p eople in the Legislature is inj urious t o their
”
rights and ought not t o b e exercised ( I dem p
In the debate in the Virginia Convention Mr Patrick Henry
in speaking of the 9 th section used this language :
The design of the negative expressions in this section is to
“
prescrib e limits b eyond which the powers of C ongres s shall
n o t go
The fi rst pro hibition is that the
privilege of the Writ o f Habeas Corpus shall n o t be s uspended
“
but when in case of reb elli o n or inva sion the public s afety
may require it It results clearly tha t if it h ad no t said s o
”
they could suspend it in all cases whatsoever
Elliot
s
Deb
I
II
p
S
ee
also
remarks
of
Gov
ol
V
(
Randolph qu o te d ante p 9
These were the declarati o ns in four Convention s called for the
ratifi cation of the C onstitution and in that o f New York it will
b e observed that it is expressly s e t fo rth in their act of ra tifi
c ation tha t the po wer of su spension i s in C ongre s s
Mr Ha milton was a memb er o f the Federal Conventi on and
also o f the New York Convention It will scarcely b e alleged
that his j eal o usy of the Exe cutive w o uld have led him s o far
astray as thus t o have sanctioned the d ec l aratioII of the exi s tence
o f p ower in C o ngress which he as a delegate t o the Federal
C onventi o n an d a member of the C ommittee o n Style and Ar
rangement had vested in the President C an it be said at this
late day to citiz ens o f N ew York that the p o wer is in the Presi
dent when their act o f rati fi cati o n declares it t o be in C ongre s s
an d they accepted adopted and have acted up o n the C ons titu
tion with that construction and with o ut a voice anywhere dis
senting from that interpret ation either then or for seventy years
afterwar ds
But p assmg do w n in the history of the Government we fi nd
the same vie w s entertained acted up on and expressed by public
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29
men under circumstan c es w hich entitle the m to very gre at
weight
The subj ect o f the suspension o f the Habeas Corpus was fi rs t
discu s sed in C ongress in 1 8 0 7 when a bill for that purp o se was
introd uced and pa s sed by the Senate but rej ected by the House
This has already been referred to ; but the Opinion s then ex
pres s ed as to the department in w hich the p ower was reposed
have a direct bearing up on the question of authority
Mr Je fferson was Pre s ident and the history of the tran s ac
tion furnishe s c o nclusive evidence th at he did n o t fo r a m oment
claim the power as existing in his department but conceded it
to belong t o the legi sl ative
Tim o thy Pickering Jo hn " uincy Adams and William B
Giles were members of the Senate Their names are m entioned
as disting ui she d state smen of their day The Senate passed the
“
bill entitled An Act to Suspend the Privilege of the Writ of
”
Habeas C orpus for a Limited Time in Certain C ases
It
appears to have been a unanimous vote The bill w as reported
by a committee composed o f Messrs G il es Ad ams and Smith
Of Maryland ( 3d vol Benton s D eb
It is to be inferred that the President and the S enators
from all the States concurred in this co n struction The bill was
sent fr om the Senate to the House o f Representatives and
although rej ected by them it was n o t for a moment doubte d
that th e po w er of suspension up on the occasions contemplated
by the C onstitution appertained exclusively to the Legislative
department This is sustained by the follo w ing quo tations from
the speeches delivered in the House :
“
Mr Burwell said If that b e the case upon what ground
shall we susp end the Writ o f Habeas C orpus ?
Nothing but the most imperious necessity would excuse us in
c o n fi din
to
the
Exe
cutive
or any p erson under him the power
g
up on bare suspicion for
o f seizing and con fi ning a citiz en
“
three m o nths without r esponsibility for the abuse o f such
”
“
unlimited discretion
“
Mr Elliott said We can susp end the Writ o f Habeas Corp us
only in a case o f e xtreme emergency
“
But we shall be told that the C onstitution has c ontemplated
ca s es of this kind and in reference to them invested us w ith
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30
i
unlimited discretion When any gentl eman shall advance such
a position w e shall meet him upon that ground and put the
p oint at issue
“
Mr Eppes said By this bill w e are called o n to exercise one
o f the most important p owers vest ed in Congress by the C on
The words
s ti tuti o n o f the United States
The privilege o f the Writ o f Habeas
o f the Con s titution are
C orpus shall not b e suspended unless w hen in cases of rebel
lion o r invasion the public safety may require it
The word
ing of this clause o f the C onstitution deserves peculiar atten
tion It is no t in every case o f inv asion nor in every case of
rebellion that the exercise o f this power by C ongress can be
“
j usti fi ed under the words of the Constitution
The Con s titution ho w ever having vested this p o wer in C m
gress and a branch of the Legi slature having thought its
“
exercise necessary it remains for us to inquire whether the
“
present situation of our country authorizes on our part a
”
resort to this extraordinary measure
“
Mr Varnum said
I c o nsider the co untry in a degree in
“
a state o f inse curity ; and if s o the p ower is vested in Con
gress under the Constit ution t o suspend the Writ o f Habeas
”
“
Corpus
Mr Sloan said Had this measure been brought forward a
”
“
month or six weeks ago I should have voted fo r it
“
Mr Bidwell said
Befo re the p assing o f any bill of t his
nature the House ought to have satisfactory proof that a
rebellion in fact existed ( for there w as no pretence of an inva
sion " and that the public safety required a STI Spension of the
rivilege
By
the
terms
o f Habeas Corpus
o f the C o ns titu
p
tion both o f these p rerequisites must con cur to authoriz e the
”
“
measure
Mr J Randolph said It appears to my mind like an oblique
attempt to cover a certain departure from the established la w
o f the land and a certain viol ation o f the Constitution o f the
United S tates which we are told have been c ommitted in this
country Sir recollec t that Congress met on the fi rst of
D ecember t hat the President had info rmation of the incipien t
stage o f this conspiracy about th e la s t of S eptember that the
ro
c
lamation
issued
before
Congress
met
and
yet
that
no
sug
p
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31
gestion either from the Executive o r from either branch o f
the Legislature has transpired touching the propriety o f sus
“
pending the Writ of Habeas Corpus until this viol ati o n has
taken pl ace I will never agree in this sideway to cover up
such a violation by a pr o ceeding highly dangerous t o the
“
li berty o f the country or to agree that this invaluable privi
lege shall be s u spended becau s e it has been already viol ated
and suspended t o o after the cause if any there was for it has
”
ceased to exist
“
Mr Smilie said A susp en s i o n o f the privilege of the Writ
o f Habeas Corpus is in all respects equivalent t o repealing
that essential p art o f the C onstitution which secures that prin
c ipl e which has been called the palladium o f personal liberty
If we recur to England we S hall fi nd that the Writ of Habeas
Corpus in that country has been frequently suspended But
under what circumstances ?
We have
“
taken from the statute of this country ( England " this most
valuable par t o f o ur Constitution The Convention who framed
that instrument believing that there might be cases when it
w ould be necess ary to ve s t a discretionary p ower in the E xe
c utive
have constituted the Legislature the j udges of this
“
necessity ; and the only question to be determined now is
”
does this necessity exist ? ( 3 d vol Benton s Deb 5 0 4
O n the 1 7 th of February 1 8 0 7 the H o use of Represe ntatives
proceeded to consider the m o tion of Mr Broom to wit : Re
solved that it is expedient to make further provision by law
“
for securing the privilege of the Writ o f Hab eas C orpus to
persons in custody under o r by color of the authority of the
”
United States
Mr Bro o m said
This privilege o f the Writ o f Habeas
C orpus has been deemed so important that by the ninth sec
tion o f the fi rSt Article o f the C onstitution it is declared that
it shall n o t be suspended unless when in cases o f rebelli o n
o r invasi o n the public safety may require it
Such is the
value o f this privilege that even the highest legislative b o dy
o f the Union — the legitimate representatives o f the n ation
are not intrusted w ith the guardianship of it or su ffered to
“
lay their hands up o n it unless when in cases of extreme
danger the public safety shall make it necessary
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32
“
This constitutional provision was intended only as a check
“
upon the p ower o f C on gress in abridging the privilege but
was never intended to prevent them from intrenching it around
with s ou nd and wholesome laws ; o n the contrary it was ex
c te d that Congre s s were pr ohibited from impairing at their
e
p
“
pleasure this privilege —tha t they would regard i t as of high
”
“
imp o rtance and by c o ercive laws i n sure its Operation
“
Mr Bidwell said The C onstitution by restricting the Legis
l ature frdm su spending it except when in cases o f rebellion
“
o r invasion the public safety may require a susp ension had
“
rec ogni z ed it as a writ of right and our statutes had autho
”
ri z e d certain c o urts and magistrates t o grant it
“
T hi s p rovisi on evi d entlyrelates
Mr G W Campbell said
to C ong ress and was intended to prevent that b od y from s us
“
p ending by law the Writ of Habeas Corpus except in the
cases stated and has no relation w hatever to the act of an
individual in refusing to obey the Writ —
such refusal o r dis
“
obedience would not certainly susp end the privilege of that
Writ and must be considered in the same p oint of view as the
vi olati o n of any other public law mad e to protect the liberty
”
o f the citizen
“
Mr H olland said But sir so far as respects the Habeas
C o rpus the susp ensi on of i t app li es to the L egis lature and not
to p ersons The C onstitut i on says 1 t shall not be suspended
“
but in ca s e of rebellion or when the public safety requires it
T hi s p rohi bi ti on manifestly app lies to the L egi s lature and not
”
to persons in their individual capacity
Mr J Randolph said The Writ o f H abeas C o rp us is the
only Writ sanctioned by the Constituti o n I t i s gu ard ed from
”
“
3
a
t
h
e two H o us es of C on res s
d
ro a c h ex c e t b
ever
y pp
y
g
(
p
vol B en to n s Debates pp 5 2 0
In 1 8 42 in the d ebate on the bill to indemnify Gen Jackson
for the fi n e im posed o n him by Judge Hall at Ne w O rleans
Mr Bayard said Congress may indeed suspend the privilege
o f the Writ o f Habeas Corpus but cannot declare martial la w
to be the la w of the Unite d S tates or of any part of them
The Constitution say s Congre s s shall have
p o wer to declare w ar to raise armies to provide a navy to
provide arms and munitions o f w ar and to make rules for the
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34
“
the United States would of itself be a violation of the
”
C o nstitution
o l X I V Bent o n s Debates p
V
(
In an Opinion delivered by Mr A ttorney General Cushing
up o n the subj ec t of martial law an d the su spension o f the
Habeas Corpus in February 1 8 5 7 gr owing o ut of a proclama
tion o f martial law by the G o vern o r of Wa shington Territ o ry
in o rder t o su spend the Habeas C o rpu s this language is u s ed :
The Opini o n is expres s ed by c o mmentators on the Con s tituti o n
“
that the right t o su spend the Writ o f Habeas C o rpus and
“
also that o f j udging when the exigency has arisen belong s
“
It may b e assumed as a
exclusively t o C ongress
“
general d o ctrine of c onstitu ti onal j uri s prudence in all the
“
United States t hat the p o wer t o s u spe n d laws whether th os e
“
granting the Writ of Habeas C o rp us or any other is vested
”
“
exclusively in the Legi slat ure o f the partic ular S tate
O
pinion
s o f A ttorney s General V ol VIII p
(
It i s a q ue s tion well worthy of c o n s ideration whether after
s o long and continu o u s a s tream o f author ity has b een fl o wing
in this on e direction it can b e nece ss ary t o go int o any o ther
argument to prove this p o wer to be vested in the Legislative
dep artment If the fra mers of the C o n s titution s o under s t o od
and intended it that i s an end to the c o ntroversy That t hey
did s o understand and intend i s abundantly sustained by the
hist o ry of the cla use and the auth o rities herein cited
It w o uld be a m o st remarkable in stance o f inaccuracy if they
had used language which mi s led them s elves and all other per
sons who examined the subj ec t for a p eriod o f seventy years
Such weight of authority w ould in referenc e t o almost any
other subj ect have closed the d o o r to q u e s tion or doubt fo rever
“
that s o far as authority goes it is a q ue s tion
I s the stateme n t
”
borne out by the facts ? It is t rue that
o f fi rst impre ss i o n
thi s remark has reference only t o j udicial authority But this
with the ab sence of any allu si o n to the pr o ceeding s of the c on
venti on s and o f Congress or the text writers hereinbefore cited
except a very S lighting reference to Judge Story s C ommen
aries would le ad the reader who had not examined t he subj ect
0 infer that there was no aid to be had fr o m the record s o f the
past where as a flood of light is poured in by authorities quite
as persuasive and conclusive as any j udicial o pinions could be
of
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35
however w ell considered I t would certainly have been more
satisfactory to have had some explanati o n of these auth o rities
in connection with the statement referred to and before it was
made
In V iew of the authorities it is no w a ffi rmed that so far fro m
its being a question o f fi rst impressi on it is in truth most clearly
settled and should be set at rest for all time
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,
D
O E S THE
C O N S TIT U TI O N, B Y IT S O WN TER MS ,
P O WER IN THE P RE S I D ENT ?
V
E S T THE
Having disposed of the question o f auth ority the pamphlet
proceeds to S ho w that the C onstitution by its o wn terms vests
the power in the President The prop ositi ons advanced may be
stated thus
1 That what the C onstitution has ordained o n this subj e ct is
all the law required for bringing it into Oper ation
2 The C onstitution itself authorizes its suspension under
conditions and therefore suspension in th e cases supposed is
an Exec utive act and it never can become anything but an
E xec utive act ; hence Congress could not authoriz e it
3 That the conditions o f rebellion and invasion and the
demands o f the public safety in such a conj uncture are within
the pr oper functions of the E xecutive department ; that the
President may establish them and the p ower o f denying the
privilege fo r a season belongs wholly to his o ffi ce with the e ffect
which the C o nstituti o n allows
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1
As to whether that which the Consti tution has ordained is
all the law required for bringing it into op eration
Su spen sion practically must b e w orked o ut somewhat in this
manner A man is arrested ch arged w ith a c rl me ; he applies
to a S tate or Federal C ourt for a Habeas C orpus ; the C ourt
to w hich the application is made fi nding that there is no la w
suspending the Habeas Corpus grant the Writ ; all o fficers
civil and military are bound to obey it It is a matter of every
day practice to release minors from the army by this Writ
Up on the issue o f the Writ and the return showing that the
applicant is con fi ned without a la w ful ground of detention the
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C
ourt is bound to order his discharge and the o ffi cer is bound
to yield obedience O n the contrary if an act o f suspension
had been p asse d by Congress the Court w ould ex amm e the p eti
tion and if the case appeared to be on e of those in which the
act wa s intended t o Op erate the Judge would refuse t o grant the
Writ If however there should be a doub t about it or for
any reason the C ourt should have granted the Writ when the
return t o it was m ade and it appeared by the return that the
Writ was improvidently issued as being in contravention of the
law of Congress the Court w ould merely s o decide and remand
the prisoner
By reason o f the Act of Congress the c o n fi nement and de
tention would be come lawful as regarded such person s as were
w ithin the purview of the Act and the C ourts would be b o un d
s o to decide and deny the Writ in the fi rst instance ; or if they
had issued it they w o uld refuse to discharge up o n b eing info rmed
by the return that the prisoner w as held under the pro vI Sion s o f
the act o f suspensi on This rule w o uld prevail for so long a
p eriod as the conditi o ns contemplated by the act continue d to
exist
That would be the regular as well as the most appr o priate
method of working o ut the suspension in all such places as the
C ourts w ere holding their sessi o ns free from mob or revol u
”
“
denying
This would be
t io nary violence and influence
” “
”
“
deferring
delaying hanging up fo r such seas o n as was
provided by the act of C ongress in accordance with the Con
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s ti tuti on
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When the courts could n o t sit o r fo r any reasO n the o ffi cers
wh o had cust o dy o f such prisoners were p ersuaded that harm
wo uld befall the Government by reason of their o bedience to
the Writ if issued by a court the act of Congress might autho
ri z e them to d e tain the persons so arrested fo r such length o f
time as the public exigency demanded or to refuse even to obey
the co u rt in the making o f any o rder in violation of the la w
This w oul d be another mode o f working o ut the su spension
But in either mode there must be a l aw an act o f C ongress
as a rul e of a ction both for the courts and the o fficers who may
have c us to dy o f the arreste d p ers ons They c anno t tak e the ip s e
O ffi cers cannot detain a prisoner w ithout
d ix i t of any o ne
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37
authority of law in any case C ertainly it will not be pretended
that each marshal or j ailer or military o ffi cer who may have a
pris o ner in cust o dy has the right under the C onstitution to
determine whether there is rebellion and invasion and whether
o r no t the p ublic safety requires the H abeas Corpus t o be s us
p ended by him in the particular case The c o nfusion resulting
from such a system is t oo evident to allow of any such interpre
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t atio n
.
Again if the c onstit ution al clause is all the la w required for
bringing it into Operati o n is it no t then a law which all men
are alike bound to obey and ful fil —the President the j udges
the marshals the j ailers the military o ffi cers and all others ?
In that a spect of the matter the question becomes a j udicial one
The j udges when applied to for a Habeas C orpus would have
2
t o in q uire : 1 Whether there was a rebellion o r inva s ion
If they decided that either existed they would have to inquire
whether the public safety required the suspension or not N o
o fii c er can refuse to ob ey a lawful writ o f a c o urt ; and until
an act of Co ngres s is pa s s ed taking away the power from the
courts to issue and enforce obedience to their authori z ed writs
all men must obey When the writ was issued and the prisoner
brought int o c o urt it w o uld be purely a j udicial question whether
the ca s e fell within the contemplation o f the clause or not The
o ffi cer who held the prisoner in custody co uld no t d ecid e the
question for the c ourt
O ur C onstituti on on the c o ntrary speaks to all s ub ordinate
authorities created by it
The C onstitution is
“
itself the authority and all that remains is to execute it in
”
the conditione d case ( Pamphlet page
”
“
Who are the sub ordinate auth orities thus S p o ken to ? And
?
wha t is the conditioned case
Are they not the j udges the
President the marshals and all other o ffi cers civil and mili
tary ? Is not the conditioned case given by the Cons tit u tion ?
The argume nt proves t oo much It makes suspen s ion the active
o p erative law in the conditioned case
an d of course renders it
a j u dicial question whether the case has arisen or not that will
not be contended for by any o ne
The foregoing remarks are intended to sho w that an act of
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38
Congres s is ne c essary to bring into operation the principle of
susp ension provided for by the Constitution
2 Is susp ensi o n under the C onstitution an Executive act
and can it become nothing else than an Executive act ?
It has already been contended with what success the reader
mu s t determine that if the que stion was left under the consti
tuti onal clause without an act of C o ngress the suspension w ould
really be a j udicial not an E xecutive act ; or if not solely j udi
c i al it would be an act o f the marshals j ailers and other o ffi cers
w ho happ ened to have the cu stody of the arreste d persons c on
j ointly with the courts In point o f fact it w ould n o t and could
not bec o me an act of the President H e has no direct or im
mediate custody or control over the p ers ons arrested under the
law in reference to treas o n They are in the cust o dy o f the
la w They are to be held under the la w tried under the la w
and puni shed or discharged under the la w He as c ommander
in chief o f the army and navy has prisoners o f war under his
c ontrol This is by the law o f natio ns and of w ar But not
s o with p ersons who are n o t such pris o ners
A man arrested
for trea s on or treasonable practices is no more under the con
trol or in the cust o dy of the President than such as are detained
for counterfeiting o r r obbing the mails or any other cri me of
like character Therefore w hen a Writ of Habeas C orpus is
issued by a c o urt to a m arshal or j ailer comm anding him to
bring b efore the court a prisoner and the mar shal o r j ailer
refuses so to do it is no t the President who refuses to obey the
writ and thereby susp ends the privilege either p ersonally o r
acting t hrough the subordinate offi cer
The act o f s uspension consi sts in the refusal t o obey That
is simply and exclusively the act of the offi cer and he is liable
p ersonally fo r all the consequences T he President is in n o
sense responsible fo r it and his order is n o protection t o the
o ffi cer
It is unreasonable to say that an act which is to be p erformed
by an o ffi cer o f the law who is to l oo k to the law and no t t o
the President for his r ule o f action and who in his sphere is as
independent of the President as the Pre sident is of him in the
discharge o f his duties is an act o f the President and cannot
be anything else
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39
It is assumed that when Mr Binney uses the w o rd E x e c u
”
”
tive he means Pre sident and treats the terms as convertible
”
“
If however a distinction is t o be drawn between Pre s ident
”
“
and Executive meaning by the fi rst to designate the ind ivi
d ual chief magi s trate an d by the latter all executive o ffi cer s of
the Govern ment who derive their appointment fr o m the Presi
dent and wh os e duty it is to aid in the exe cution of the laws as
well as the President then the arg ument which has already been
advanced as to s uspension by them under the rule proposed recurs
in full fo rce
It i s n o t d o ubted that C ongre s s might ( and it would be in the
highe s t degree proper " in the suspension act impose certain
dutie s up o n the President and invest him with certain di s c re
tio nary powers as to time place classes of pers o ns and other
circumstance s c o nnected with the su s pension ; but it is n o t less
clear that they c o uld in like manner c onfer S imilar powers and
i mpose S imilar d uties up o n other o ffi cers b oth civil and military
for the purpose o f carrying the act into e ffect Indeed it w o uld
be abs olutely necess ary that they S hould clearly de fi ne the dutie s
o f s uch o f
fi cers in the premise s in o rder to protec t them fro m
liability for dam ages in civil actions t o g u ard the pers o n s
arre st ed fr o m arbitrary Oppres s ion and e ffi ciently pr omote the
p ublic safety
3 But it is contended that the establishment or decl aration
o f the exi s tence o f rebellion and invasi o n and the demands o f
the p ubli c safety are within the proper functions o f the E x ec u
tive department o f o ur G o vernment and therefore that th e
p ower o f s uspensi on bel ong s to the o ffi ce of President w ith the
e ffect which the Con s tit ution allows
T he fi r s t part of this propositi o n demands careful examina
tion T he C on s titution d o es n ot in expre s s term s confer up o n
the Pre s ident o r c on fi d e t o him the duty of deciding o r dec laring
when the condition s o f rebelli o n or inva sion exist No r does it
either expressly o r by i mplication deny the p ower o r duty to
C o ngre ss
The language in that in s tr ument which connects him o r his
“
duties directly with either is the pr o vi si o n that the Pre sident
s hall be c o mmander i n chief of the army and navy o f the United
States and of the militia of the several States when c a lled into
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”
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the actual service of the United States
That is when by
an act o f C o ngress they are c alled into actual service he is
commander He cannot call into existence a corp o ral s guard
w ithout the authori ty of law
” “
“
C o ngre s s are alone auth o ri z ed to declare w ar
to raise
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t o p ro vi d e and maintain a navy
and supp ort armies
to
make rules for the government and regulation of the land and
”
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naval fo rces and to provide fo r calling fo rth the militia to
execute the laws o f the Uni on suppres s insurrections and repel
”
invasions
Under these provisions it would seem to be fair to infer that
Congre ss has the power either to decide for them selves or to
vest the di s creti o n o f declaring when inva sio n o r rebelli o n have
occurred in such o ffi cer as they might deem best for the public
interest This p ower was in fact exercised in the adopti o n o f
the act of 1 7 9 2 The authority conferred by that act to call o u t
the militia was to be executed by the President in the case o f the
ob struction to the laws upon being noti fi ed of the occurrence by
the A ss o ciate J ustice o r a Di s trict J udge of the pr oper c o urt
This was the fi r s t ac t on the subj ect an d alth o ugh passed as Mr
”
“
Binney says in a spa sm of j eal ousy it was signed and acted
upon by General Wa shington It was repealed in 1 7 9 5 and a
sub s titute passed by which the Pre s ident was authoriz ed to call
o ut the militia when the laws o f the United States were Oppo s ed
o r their execution o bstructed by combinati o n s t o o powerful t o be
suppressed by the ordinary c ourse o f j udicial proceedings o r by
the powers ve s ted in the marsh al s
Mr Binney c o n s iders the act o f 1 7 9 5 as veryp o tent proof
but
o f the p ower an d du ty o f the President in this matter
p oints o ut no reason why the act o f 1 7 9 2 was not quite as con
elusive as to the po wer o f C o ngres s t o vest the discretion in
any other ofii c er and especially in a United States Judge
The case o f Martin v M o tt 1 2 Whe ate n 1 9 certainly d o e s not
s ee in the act of 1 7 9 5 anything m o re t han an authority t o the
Pre s ident to call out the militia when the exigency had arisen
and it only decides that which is a well rec o gni z ed rule Of law
that when a statute provide s that an act s hall be do ne by any
pers on up o n his o wn j udgment as to the c o ntingen cy having
arisen no one can go behind his decision Mr Justice
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42
existence of rebellion o r invasion with the ded uction from it is
therefore out of the case
The fall a cy as t o E xecutive p ower under this clause has its
”
o rigin
in the err o neou s a ss umption that the
clause is
enlarging in s tead o f re s trictive in i ts character and that the
Pre sident derives hi s p ower from the C ons ti tu ti on t o decide or
declare when rebellion or invasion exi s t s It is n o t intended t o
deny that the Pre s ident may when the c onditions of rebelli o n
o r invasion have occurred take such pr eca u ti o nary measures
b ased upon the facts as they exist and subj ect to the future
acti o n o f C o ngress as may be demanded by the public safety
No thing is either affi rmed or denied in reference to the p o wer o f
the President in such an emergency as it d o e s n o t bel ong t o
the present discussion
The position n o w taken goes no farther than merely to assert
that the power o f decl aring the existence o f rebellion or inva
sion belo ngs constitutionally to Cong re ss ; that they can ve s t
the discreti o n of deciding upon the same fabts in any o ffi cer
they m ay dee m be s t ; and that the p ower o f the President to
declare their exi s tence auth o ritatively and c o ncl usively c ome s
not fr o m the C o nstitution but fr o m the act of Congress ; and
hence the error as to his p o wer to suspend the Habeas Corp us
predicated upon the mistake as to his auth o rity in regard to the
declaration of the existence of rebellion o r inva sion is readily
and e asily co mprehended
”
The p re p osition that the cl a u se is a re s triction in stead o f
a grant o f auth o rity has already been di s cussed a nte p 8 —1 1
If it is a restriction not a grant of p o wer and the p ower
to su spend is derived t o Congre ss from other part s of the Con
s t ituti o n
and e s pecially from the clause auth o ri z ing the m t o
provide fo r the s uppres s ion o f in s urrection and the repelling of
invasion it is clear that the Habeas Corpu s cla us e i s n o t a law
self executive and becoming Operative by way of s uspe ns ion
when the contemplated c o nditi on s exist but that it is a p rohibi
tion applicable t o C ongress o nly and leaving it to their legisla
tive discretion to decide w hether the c ontingencies provided fo r
h ave ari s en or n o t and making it their d uty to exerci s e the
remnant o f p ower left in the m upon the o cc urrence o f the
re q uired conditions
The admission however that the clau s e is a grant of power
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instead of a restricti o n upon that granted elsewhere does not
m aterially a ffect the questi o n o f the exclusive right o f C ongres s
F o r if any ellipsis is t o be supplied s o as t o make the sense
complete the materials fo r the additi o n are t o b e drawn from
the o rdinary rules o f constructi o n governing in such cases :
such as analogy p o sition context j udicial and c o nte mp o raneous
o ffi cial and hist o rical c o n s tructi on Apply these rules and the
“
w ords to be added are
A nd then it may be suspended by
”
“
So decided is the argument from p ositi o n and
C ongress
context that no text writers o r o ther persons whether in the
State C o nventi o n s o r Congre s s o r j udges or lawyers prior to
the year 1 8 6 1 ever s ugges ted a d o ubt abou t it
It i s immateri al therefo re whether the clause is regarded as
enlarging o r restrictive F o r if the latter it is a quali fi cati o n
o f power granted by a p receding clause to Congress
If th e
fo rmer taken in connecti o n with the preceding and succeeding
pr o visi on s it is a grant of p ower t o Congress limited by cer
tain sp eci fi c conditions
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PA R LI A MENT AR Y
THE
D
O C TRINE
.
A c onsiderable portion of the p a mphlet i s addressed to what
is call ed the Parliamentary doctrin e Th e e ffo rt is m ade t o
”
“
“
e s tabli sh the prepo sitio n that the clause is a departure from
”
“
the English C on s tit ution and rule and that they are thus
“
set aside as a s afe anal o gy in the application o f the clause
”
fi n ally ad opted
This line o f argu ment is adopte d because
it is admitted that if the anal ogy of the Engli sh Constitution
is applied to o ur s it will inevitably carry the power into the
Legi slative to the excl usion o f the E xecutive departm ent :
T o determine t o what extent it was a departure and how far
it is requi si t e t o l ook to the English sy s tem in o rder to arrive
at correct conclusi o n s it i s pr o p er t o take a brief notice o f the
Engli s h principle as it exi s ted in the m o ther c o untry and was
drawn fr o m that source into and ad o pted by the Col o nies fi rst
the States afterwards and fi nally by the framers o f our C onsti
tuti e n
“
The English pe ople always maintained and as s erted
that
“
n o freeman oug ht t o be committed o r detained in pr i son o r
“
o therwi s e restrained by the c o mmand o f the Ki n g o r Privy
C ouncil o r any other unless some cause of the commitment
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44
u
detainer or restraint be expressed for w hich by la w he ought
t o be committed detained o r
The Writ of Habeas Corpus furnished the remedy agai nst the
vi olation o f this right in E n gland This was a comm o n la w
writ It s prang fr o m n o s tatute The struggle o f the people
w ith the Cr o wn for the maintenance and vindication of the prin
c i l e res ulted in its full acknowledgement and establishment by
p
th e Magna Charta during the reign of King J ohn But it was
nece s sary t o secure the right fr o m executive encroachment
through servile j udges by s ome st ringent and severe enact
ments This gave rise to several acts of Parliam ent the more
important o f which were the 1 6 Charles I 3 1 Charles II and
at a later peri o d 5 6 Ge o rge III These acts o nly pr o tected
the pe ople in the enj oyment of the c omm o n law right by the
enactment of severe pen alties for its vi olation o r fo r the r efu s al
o r denial o f the Hab eas Corpus
They conferred no right not
already existing but merely guarded and protected mo re efii
c i en tl
the
remedy
The
right
itself
an
d
the
privilege
right
o
r
y
to the remedy ( the Writ of Habeas C o rp us " were b o th common
l aw rights ff The only quali fi cati o n of either was also a c o mmon
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g e neral p ri nci pl e s eems to ha v e had its a d v o cat es l ong p ri o r to
the E ngli sh e ra
Ab o ut eight een c ent uri es ago , w he n P o rci us F est us and
K i ng Agri pp a w e re e x a mi ni ng the A p os tl e Pa ul who had a pp e al e d fr o m the
“
p r ovi ncial c o urt to the R o ma n E mp ero r, the fo r mer s ai d : I t s e emeth to me
“
unr eas o nabl e to s end a p ri son e r a nd n ot withal to s ig nify the cri mes lai d
“
”
A
agai ns t him
ct
C
h
a
p
t
r
X
X
v
r
s
e
V
s
e
e
(
,
“
1 I t i s a v e r y c o m mo n m i s tak e and that not o nl y a mo ng fo r eig ners but
ma ny fr o m w ho m s o me k no wl ed g e o f o u r c o nstit u ti o nal l aw s might be ex
p ec te d to s upp o s e t hat t hi s s tat ut e o f C harl es II e nlarg ed i n a gr eat d e gr ee
O ur lib erti e s a nd fo r ms a s o rt o f e p o c h i n t he ir hi s t o ry
ut t ho ug h a v ery he n e
b
;
fi c ial e n act m ent a nd e mi nen tly r e med ial i n m a ny ca s es o f ill egal i mp ri s o n
m en t, it i ntr o d uc e d n o n ew p ri n ci pl e n or c o nferred any rig ht u p o n the s ubj e ct
F ro m the earli es t r e c or d s of the E ngli sh law , no free ma n c oul d be d etai ned i n
p ri so n ex c ep t up on a cri mi nal charg e Or c o nvicti on , or for a civil d ebt I n the
fo r me r ca s e it was alway s i n his p o w e r to d em a nd of the C o urt of Ki ng s B en ch
a writ o f ha beas c orp us a d s ubj ic i end um, d ir e cted to the p erso n d etai ni ng him
i n c us t o dy , b y whic h he was e nj o i ne d to bri ng up the b o dy o f the p ri so ne r
with t he warra n t o f c o mmit me n t that the C o urt m ight jud ge Of i ts s uffi ci e n cy ,
a n d r e ma n d the p arty a d mit hi m to bail o r d i s c harg e hi m, acc o rd i ng t o the
n at ur e o f the c harg e
“
T hi s writ i ss ue d o f right a nd c o ul d no t b e r efused by the C ourt I t was
n o t to b es to w a n i mm unity fr o m arbitrary i m p ri so n me nt , w hic h i s ab un d a ntly
p r ov id ed i n Mag na C harta ( if i nd eed it wer e not much more a ncie nt " , that
T he
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45
law principle to w it tha t Parliament and Parliament alone
could suspend the privilege of the Writ if they cho s e so to d o
by the enactment of a law for t hat purp o se
Thus sto o d the Engli sh la w when the C olonies w ere fo unded
and in the lang uage of the Continental Congress of 1 7 7 4
O ur
ance s tors who fi rst settled these C olonies were at the time of
their emigrati o n from the mother country entitled to all the
rights liberties and immunities o f free and natural born sub
”
ec ts within the realm o f England
j
Lord Ch atham in his argument before the Hp us e o f Lords
against the d o ctrine of taxation w ithout representation in 1 7 66
said The C ol o nies are equally entitled with yourselves to all
the natural rights o f mankind and the p eculiar privileges of
“
Englishmen equally bound by the laws and equally p artici
p ating of the Constitution o f this free country The A meri
”
cans are the sons no t the ba s tards o f England
These doc
trines have been univer s ally recogn i z ed throughout the United
States as true
The principles as to the freedom o f the p e o ple were the
same in the Colonies as in England ; also the principle that the
p ower o f s uspension of the privilege o f the Hab eas C o rpus was
ex clusive ly vested in the Legislative depart ment and explicitly
and pointedly denied to the E xecutive department was the la w
o f the C ol o nies as well as o f the mother country
When the C ol o nie s threw off their allegiance to Great Britain
the principle s o f the common law still prevailed an d the p owers
which had previou sly re s ided in the Parliament became vested
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tat ute o f C harl es II was e nact ed but to c ut o ff the ab us es by which the
G o v e r nme nt s l us t o f p o w e r a nd the s e rvil e subtl ety o f Cro w n lawy e rs had
”
i mp aire d so fund a mental a p rivil eg e ( H alla m s C o nstit uti o nal H i st o ry , p age
5 0 0 c ha p t er
“
T he H a beas C orp us i s a c o mmo n l aw writ, and has b een used i n E ngla n d
fro m ti me i mme morial j us t as it i s no w T he stat ut e Of 3 1 Car 2, c 2 m ad e
n o alt e rati o n i n the p ractic e o f the c o urt s i n gra nti ng t hese writs 3 B ar n
(
Al d 4 20 —
2 ; C hitt y R ep s 2 0 7
I t mer ely p r o vid ed that the j ud ges i n v aca
ti o n shoul d hav e the p ow er w hich the c o urts had p revi o usly ex erci se d i n t erm
ti me ( 1 C hitty s G e n P ra c
and i nfl ict e d p en al ti es up o n thos e who sho ul d
d efeat i ts o p erati o n T he c o mmo n law up o n thi s subj ect was bro ught t o
A merica by the c ol o ni s ts ; a nd most , if n ot all the S tat es, hav e s i nc e enacte d
”
la ws resembli ng the E ngli sh s tat ut e Of C harl es II i n ev ery p ri nci p al fe at ure
( Pa ss more Willia mso n s ca se, 2 Ca sey ( P e nna S tat e R ep ort s " , p
the
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46
in the legislative bodies o f the respective C olonies and the
re s tricti o ns upon the King fell upon the Executive departments
respectively so far as th ey w ere applicable
Thus the prep osition is deduced that from the time of the
D eclaratio n o f Independence and up to the ad o ption of the
C o nstitution o f the United States the right of freemen t o the
Hab eas C orpus existed in the respective S tates j ust as it did in
Engl and ; that the Legislative department in each and it alone
had the p ower o f suspension having inherited this function with
all others which had belonged to the Briti sh Parliament ; and
that the non bx is tenc e o f p o wer in the E xecutive department
was a par t o f the organic or fundamental la w a s it was in Eng
l and O f course it is not intended to deny that these principles
might have b een modi fi ed by State C onstitutions
Such were the general principle s when the framers of the
C onstitution met together No o n e can doubt that they were
legislating with reference to matters as they then stood They
kne w what the common law o f England was as applied to
King Parliament and pe ople an d that it applied to the E x ec u
tive dep artments Legislative departments and the people of
the several States in the same manner as i n England except s o
far as the change o f circumst ances had modi fi ed it In this
regard there was no modi fi cati o n They incorp orated thi s great
principle o f the common law of non suspension into the C o nsti
t uti en w ith no change except to enlarge upon it as drawn from
England in favor of liberty by limiting the power of su spensi o n
“
whe n in cases of rebellion or invasion the p ublic
t o o cca s ions
”
safety may require it
In all other respects whether as regards the right of free
men o r the Wri t or the privilege of the W rit o r the r ules and
doctrine s applicable to the S ubj ect in its every phase they were
left as br o ught from the mother country and planted in the
C olonies and carried into the n ew relati o n o f independent States
Nor i s there a S ingle w ord in the C o nstitution which modi fi es or
alters o r changes the common la w principle that the power o f
suspen s ion appertains to the Legislative dep artment
Mr Binney says of the clause It is un English becau s e it
ties up the legislative power as well as all other p ower ; and
“ it is American because it is
o f A merican o rigin and is a con
s ervative of personal freedom in general and also o f the publi c
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47
afety in ti me s of imminent internal danger of a speci fi c cha
”
?
f
f
act
It is the incorp o ra
I s t hi s true in p o int o
ra c te r
ti o n o f a principle dra wn entirely fro m English constitutional
law with a limitation or restriction added which leaves the
Engli sh principle in every respect in full fo rce whenever the
conditions exist which authori z e the exerci s e of the p o w er of
s uspen s ion
In o ther words the m o ment the case of rebellion o r invasion
intervene s and the p ublic safety require s it the restriction dis
appears and every principle of the Briti sh Constitution S prings
into full life and vigor as ap plicable t o this s ubj ect A rebel
lion exi s ts and the power o f su spension ip s e fac to is in ev ery
respect the Engli sh p o wer o f s uspension
It is peculiarly Engli sh also in this that while the Parliament
have th e power o f su spension it has b een u s ual t o exerci s e it
only when it was deemed best for the public safe ty during
foreign and domestic di s turbances Their practice corresponds
with o ur constit utional restriction
The o nly substantial difference then between o ur C on s titution
and the Engli s h is that what Parliament may do at any time
the p rO p er depart ment o f o ur Government m ay do o nly at cer
tain sp eci fi ed times and that the re s triction i s but the enact
ment of their practice as a part o f o ur organic law
By
their law asserted and reasserted e s tablished by everything
that can render a fundamental pr inciple inviolably sacred and
u t the head of any s o vereign
s o endeared and cheri s hed a s t o
p
in p eril who would encr o ac h upon the right of his meane s t sub
ec t in this respect the King o f England is prohibite d fr o m the
j
un lawfu l detention o f any man h o wever vile o r ob s cure
The King is the E xecu tive of England The framers of the
C onstitution were fresh fr o m the struggle of the War of Inde
ad based their j u s ti fi cati o n up on his illegal
en d en c e
They
h
p
and de sp o tic acts It was E xe cutive power which had o ppre s s ed
their forefathers and which had roused themsel ves to the highest
pitch of de speration in re s istance to its aggressions
They s aw the value o f the princip l e of the Habeas C o rpus in
the English system as a protection against E xe cutive power
and ad opted it with one addition in favor of the l iberty‘o f the
people ; namely a restriction of the power of suspensi o n upon
the Legi slative department in which alone it was vested This
s
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48
is the only dep arture fro m the English principle Its extent
however can be appreciated when the fact is adverted to that
o ur constitution upon this subj ect is but the enactment of their
constitution and practice combined
Eno ugh has been said to S h o w how utterly impossible it is to
discard Engli sh anal o gy I n c o n sidering this subj ect as also to
te s t the soundness o f the obj ections t o t his m o de of constructi on
The analogy is neither defective nor deceptive It is the only
o ne we have and is the source w hen ce the principle and every
thing connected with i t have been drawn We can as readily
discard o ur l anguage o r ignore our English blood With it the
subj ect is s imple and easy o f comprehension ; witho u
t it we are
lost in a labyrinth o f vague and bewildering speculation
Mr Binney presents the matter in an o ther light which
“
de mands notice O n page 3 5 he says : If the clause in the
Constit ution had said of the WR IT o f Habeas C o rpus o r of a
Habeas C orpus Act enacted o r t o be enacte d what it says of
the P R I V I LE G E o f the Writ there would have been some gr o und
fo r the argument that a Writ o f Habeas C o rp us and a Habeas
C orpus A ct bei ng the work of the L eg is lature the suspension
”
“
o f the Writ o r Act s hould b e made by the Legislature al s o
This is a statement that the Wri t of H a beas C orp u s and the
Hab eas Corpus A cts are both legislative in their origin A
moment s reflection will detect the err o r conveyed by thi s lan
guage Habeas C o rpus A c ts are the work o f Legislatures But
the Wri t o f Habea s C o rpus as it prevails in the several States
has n ot necessarily its foundation in any legislative act but in
the common law The legi slati ve acts in reference to it only
secure i ts bene fi t o r privilege against corrupt or tyrannical
j udges and c omp el its i s sue and obedience to it under severe
“
penalties Hence if the clause had o nly sp o ken of the Writ
”
the language would no t have been suffi ciently
o f Habeas Corpus
comprehensive as it might possibly have been held n o t to apply
to the provisions o f legislative act
It would have fallen equally short o f the mark if it had
S poken o f a Habeas Corpus Act enacted or to be enacted for
then it m
ight have been held n o t t o apply to the common la w
r ight to the Writ o f Habeas Corpus
Either form wo uld only have c o vered half the ground The
language used expresses most appropriately and accurately the
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50
Let it be admitted I S that a reason why the C onstitution
S hould be made to mean what was no t intended ? It w as con
c eived some months ago that the safety of the nati o n required
the increase o f the army an d navy There w as no act o f Con
gress authorizing i t The President took the responsibility
Did any on e imagine because the preservation o f the G ovepn
ment required it therefo re the President had the c o ns titu
It was admitted on all hands he had not and
ti on al p ower ?
his j ustifi cation was to be found in the subsequent rati fi cation
by Congress
It w ill not be denied that there are occasions w hich seem to
call for extreme measures ; when the Executive department may
be stro ngly pressed to go to the u
tmost verge of doubtful p o wer
All that can be said w hen that power is transcended is that
w hat is then done S hould b e viewed w ith reference to the sur
r o unding circumstances and if they demonstrate the necessity
and propriety o f the course of the President his acts S ho uld
receive kind and generous c o nsideration at the hands of those
w hose rights and interest s he intended to guard and pr o tect
But because an act w as d o ne o f necessity before Congress
could be called t o gether that d o es not prove that it should be
continued after Congress has been fo r w eeks or months in s es
sion n or does it engraft any ne w principle on the Constitution
If C ongress refuse to d o their duty the fault lies with them
but the President cannot usurp their powers If this argument
of the safety o f the State is to fur nish the rule of ac tion for the
E xecutive department then Congress becomes a usele s s and cum
brous piece of machinery and the sooner it is d ispbn se d with the
b etter ; but along w ith it must go the C onstitution That in
strument was S pecially intended to obviate and exclude any s uch
appeal It is w ritten la w and w as intended to prevent the e x er
cise of arbitr ary p ower in such emergencies as w ould tempt those
in o ffi ce to encro ach upon the liberties of the people The Con
“
s titution knows no
higher law than its o wn plain precepts
That doctrine w as born later down in the life of the nation It
is an excrescence thro w n out in the heat of sectio nal and
fanatical strife It i s neither Scriptur al nor constitutional It
sweep s a w ay all landmarks human and Divine and w ould
carry us back into chaos —moral social and political
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51
But there is no such necessity and no such dilemma as that
supposed
Congress can by general la w provide for sup
pressing insurrecti on and repelling invasion w hen th ey occur
They did so in 1 7 9 5 and again in the extra session of 1 8 6 1
The susp ension o f the Habeas C orpus is clearly one o f the
m eans w hich may b e used con s titutionally for that purpose ;
and if they see fi t they can authori z e its suspension on such
occasions when the public safety may require it
A nother fo rm of putting this derivation o f the claim from
necessity adopted by some persons is that during war foreign
"
il la w
A
o r i n surrectionary martial la w sup ersedes the ci v
”
“
recent writer in the North American Review of O ctober
“
1 8 6 1 de fi nes martial law to be that military rule and autho
“
rity which exists in time of w ar and is conferred by the la w s of
war i n relatio n to persons and things under and within the scope
“
o f active military Operations in carrying o n the war and which
extinguishes o r susp ends civil rights and the remedies founded
up on them for the time being s o far as it may app ear to b e
“
necessary in order to the full accomplishm ent of the purp oses
”
o f the war
Where that military rule is to b e found in wh at
code what are its limits who is to declare it and who to repeal
it are questions that have never yet been answered
Jac obs s Law Dictionary furnishes this de fi nition : The la w
that depends upon the j ust but arbitrary po w er and
o f war —
“
pleasure of the King o r his lieu t enant He useth absolute
”
“
power so that his word is law
In ordinary times the man would b e deemed irrational w ho
a ffi rmed that w e are liable to have any such la w imposed
upon us The p o w er of the President to call out the for c es
required to suppress insurrection or rep el invasion comes from
the act o f Congress The organization of the army and navy
the time and manner of their enlistment the rules an d articles
of w ar for their government down t o the most minute particular ,
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A v ery abl e p a mphl et on the s ubj e ct o f martial l aw was p ubli shed by the
H on S S N icho la s, o f Kent u cky i n the y ear 1 8 42
I t has b een r ep ubli she d
withi n the p a s t y ear with so me a dd i t i o ns a nd Sho ul d be r e a d by ev ery o ne who
may wi sh to arriv e at a j ust c o n cl us i o n u p o n thi s s ubj e ct
H is d ev o ti o n to the p r eser v ati o n of the U ni o n and the C onstit uti on, and his
e mi n en c e as a j uri s t alik e en titl e hi s v o ic e to be hear d and hi s o p i ni ons to be
es t eemed by his c ountry men
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52
provided and enacted by Co n gress It is under the autho
rity of laws o f C ongress that every act is done in the course o f
a war I S the power of the creature paramount that which
created him ? A stre am cannot rise higher than its source
The C onstitution says Congress may suspend the Hab eas
C orpus They create an army to suppress insurrecti on but do
Can any general
n o t cho o s e to susp end the Habeas C orpus
whether c ommander in chief o r a subordinate take up o n him
self t o do th at which those w ho brought him into existence did
Yet this is suspending the Habeas C o rpus by
n o t au thoriz e ?
mar tial la w The King of Great Britain cannot pr o claim o r
X
establish martial la w in his d omi nion s
Has the President more
?
unlimited arbitrary p o w er than the King o f Great Britain
If
the President can proclai m or establish martial law what b e
comes of A rticles III IV V and VI o f amendments to the
Constitution ? Read them carefully an te page 6 They must
fi rst be abr o gated b efore this new d o gma can be in augurat ed d
They were pr o vided for the express purpose of fencing in and
restraining any such dangerous and inj urious tendencies No
articles c o uld perhaps have been b etter o r m ore explicitly
framed for the pr o tecti o n of the liberty o f the p eople ; and it
requires but a cal m and imp artial p erusal o f the w hole C ons titu
tion to s ee t hat this doctrine of the right o f the E xecutive de
artment to establ ish martial la w has not the shad o w o f fo un d a
p
tion there but on the contrary is repugnant alike to its S pirit
and letter
are
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S
remark s Of Mr H argra v e, i n referen c e to the p ower o f the Ki ng of
G re at B ritai n to p r o clai m m artial l aw will b e fo und p ri nt ed i n the A pp en d i x
T hey are c o mmend ed t o the careful att enti on of the r ea d er
T Ma ny p erso ns a nd so me o f the m by no me a ns unl e ar ned i n the law, have
re c entl y a d va nc ed the p rop ositi o n that t here are o cca si o ns whe n it i s ustifi able
to vi olat e o ne p art o f the C o ns tit uti o n i n o r d er to p r es erv e a n ot her
T here i s
a n a ut ho rity t o s us tai n t hat vi e w to e v en a gr e at e r e x t e nt p erha p s tha n t hey
c ont end for I t is p r o babl y d ue to ca n d o r that s uch a n a utho rity sho ul d n o t
On
b e o mitte d i n a d i s c uss i o n up o n the s usp ens i o n o f the H ab ea s C orp us
a n o cca s i o n Of the d i s c us si o n o f the s us p e ns i o n o f the H ab ea s C o r p us i n the
I ri sh Parlia ment, that d i sti ng ui she d c o nstit uti on al j uris t S ir B oyl e R o che,
“
I t w o ul d surely be b ett er, Mr S p eak er, to gi v e up, not only a p art, b ut
s ai d ,
”
if nec ess ary , e v e n the whole Of o ur C ons tit uti o n to p res er ve the remai nder "
m
h
s
n
n
h
u
o
f
S
k
tc
by
S
ir
a
B
arri
gt
d
g
H
ig
C
rt
A
d
iralty,
e
e
J
h
n
J
u
f
t
e
h
o
o
o
o
e
(
,
I r ela nd , p ag e
o me
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53
G E NE RAL RE MARKS
.
Rec u rring
to the pri nciples o f constr u ction as applicable to
”
“
the H abeas Corp us c l aus e i t w ill b e seen th a t the clai m o f
the po w er o f s u sp en sion for the E xec u tive depart ment is not
s u stai n ed by eit her the plain rendering o f the la n g u age or the
of the Constit u tion ; that it is negatived by E n glish
S pirit
analogy and the common l aw as it existed in the S tates at the
ti me of its adoption ; that it is contravened by the history of
the cla u se in the Convention an d conte mp oraneo u s expla n ations
o f the me mbers o f that and the S tate Conventions and by the
unifor m c u rrent of a u thority to b e derived fro m the ex p res s ions
x t w riters and states men from the fo u ndation of
u
rists
te
of
j
the F ederal U nion do w n to the year 1 8 6 1
I t is none the less clear that the p o w er of s uspe n sion is vested
in Congress and in no other department They are to exerci s e
it as any other p o wer conferred by the Consti tu tion ; that is
by p a ssing a la w pro v iding how when w here by w hom and
for what length of ti me the pri v ilege o f the Writ is to be s u s
n
I
t
ended
and
as
to
w
hat
p
er
o
s
it
shall
b
e
applicable
is
their
s
p
duty w hen doing so to p ro v ide s u ch g u ards and chec k s as may
be re qu i site for the protection of th e peo ple a gainst arbitrary
and cap ricio u s arrests and detention and to restrain those w ho
clothed w ith a uthority may b e di s posed to violence or o pp re s
sion N othing can be fra u ght with greater danger to the liber
tie s of the p eople than subjection to the exercise of unreg ulated
p o w er o f sei z u re an d incarceration by innumerable offi cers civil
and military scattered over all parts of the country
I t is not to b e desired that any a u thority should b e ta k en
fro m the P resident w hich is gi v en to him by the C onstit u tion
The experience of s eventy year s has demonstrated the w isdom
o f the fra mers in the establi s h m ent and organi z ation o f the
E xec u t ive depar t ment
B ut it has also sho w n the n ecessity for
con fi ning each department to the exercise of its o wn pec u liar
and a ppropriate fu nctions
E v ery violation o f l aw w hether moral or governmental has its
att endant e v il The act of to day becomes a precedent for to
morro w A de fl ection from the line o f rectitude ho w ever slight
in the fi rst instance involves the danger of still greater dep ar
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54
ture s in the fu t u re That w hich might have been in the highest
degree co mmendable if a u thori z ed may after w ards b e relied
up on as ju stifying the gravest and most u npardonable w rongs
O ne department of G overn ment transcends its constitutional
p o w ers in w hat it deems a case o f extreme necessity
The
act evo k es s uspicion distrust and je alousy on the part of the
I t loosens the constraining force o f the
other departments
C onstitution on all branches of the G overnment The danger
is that w hen o n e ligament is brok en others w ill become re
l ax ed and after a time they w ill one by one be cut asunder ,
until the Constit u tion ceases to exist except in name
B ut not alone is evil to be apprehended from the violations o n
the part o f the departments o f the G overn ment being thus in
The people h ave al w ays been w atchfu l and jealo u s of the
d uc e d
exercise by their r u lers of p o w ers not clearly granted E ach un
authori z ed act w eak ens the con fi dence o f the p eople in their form
As con fi dence 1s Wi thdra w n re spect and affec
o f G overn ment
tion fade P rejudice against an act of violation attaches itself
more or less to the o fficer to who m it is attrib u ted and by an
in fl exible la w of human nature to the a u thority under w hich he
claims his p o w er When these vicious in fl uences have prevai led
for a suffi cient length of time the people w ill b e ready to yiel d
t o the counsels of evil minded leaders w ho instead of seek ing to
restore the G overnment to its pristine integrity by la w ful and
p eaceable means bend all their energies to imp el their follo w ers
into the vortex o f revol u tion and civil w ar
These are some o f the evils to be a pprehended from any vio
l ation of the C onstitution ; and there is no o n e feat u re of it
about w hich the people are more sensitive than that w hich re
lates to personal liberty It is o f the utmos t importance that
even a doubtfu l p o w er should not be ex ercised in a point so
w ounding to their sensibilitie s
I t is to be most earnestly and devoutly hoped that no future
o ccasion w ill arise w hen any resort to the s u spe nsion of the
H abeas Corpus w ill be deemed re q uisite by any o n e
B ut if it
sho u ld then it is tr u sted that the memb ers of Congress o f the
day w ill have the fi rmness and manliness to meet the question
and if necessary provide s u ch a law as is re quired by the public
safety and w arranted by the Constitution
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55
AP P E ND I X
.
H argrave
O pinion
’
s
J urisc onsul t E x ercitations ,
in I rish case in volving Martial
”
V ol I
.
.
a
e
p g
,
3 99
.
Law
.
follo wing s mall article i ncludes in so me degree matte r of very
high i mportan ce which though of grea t no t orie ty in I reland where
the transaction occurred is not so gen erally kno wn a mong us i n E ng
land I t relates to the c ase of Mr Cornel ius G rogan an Irish gen
tleman of large for tune i n the C ounty of We x ford who during the
horrid rebellion i n that part of I reland in 1 7 9 8 was taken for high
treason un der the circu mstance of the r e havi ng been a previous proc la
mation authori z ing martial law i n aiding the rebels and was tried by a
Court of O fficers and being found guilty was put to de ath on the judg
men t of that Cour t ; and was shor tly after his de ath attainted of high
treason by act of the Irish Parlia ment
“
U pon the case thus generally st ated with a vie w to the trial of rebels
by martial law it is pro per to add that in 1 7 9 9 an I rish act of Parlia
ment was passed which i n efl ec t a ppe ars t o recogni z e that it is a part
of the Royal p rerog a tive during the ti me of rebellion to autho ri z e the
King s general an d other co mmanding ofli c ers to p uni sh rebels a c c o rd i ng
T he
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ma rtia l la w, by d ea th o r o therwise, a s
T hat an act of Parlia men t may, for mo r e
to
to them
s
ha ll
s ee
m
ex
p
ed i ent
.
e ffectually su ppressing rebel
lion so e x tend trial by ma rti a l la w and so also give to generals an d
othe r co mman ding o ffi cers a discretion of punishing rebels found guilty
u pon such trial eithe r with d ea th or i n d efi ni tely i n a ny o ther way is
not to be doubted ; for when such an ac t is
assed
though
udges
or
j
p
o thers should ever so strongly feel ei the r its incongruity with the prin
c ipl es of ou r law o r its hars h latitude other wise the ac t must o era t e
p
t ill it be revoked by the sa me high au thority as engrafts it on the law
of E ngland B ut the question which forced itself i n a great degree on
the author s mi nd when he was called u pon professionally to write his
O inion in ans we r t o th o se who consulted hi m for the
ur
ose
of
seekin
p
p p
g
a re eal of the G rogan attainder was —
hether
inde
endently
of
the
W
p
p
e xpress warran t of an act of Parlia men t and on the more ground of pre
roga t ive
w
o
er
authority
c
o
uld
b
e
give
a
gainst
ersons
taken
into
cus
n
p
p
tody for high treason during the heat of reb elli on to try the m by mar
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56
tial law for thei r o ffence and t o punish the m either by death or i n any
o ther way at th e discretion of the court martial so trying the m
to that question he could not forbear avo wing how his min d was affected
B ut he so avo wed hi mself under a conviction that martial law to such
an e xt ent was not the law of E ngland without ar
i e x press act of Parlia
ment
H e s aw the right of putting rebels to death i n battle while the
battle lasted H e also saw the right to arrest those found in actual rebel
lion or duly charged with being traitors and to have the m 1 mpr1soned
for trial and punish ment according to the law O f treason B ut he could
not see that t ying and punishing rebels according to martial law was
when Mr G rogan was tried and pu t to death part of the E nglish law
as it was ad mi nisterable in E ngland or even as it was ad mi nisterabl e i n
Ireland O n the contrary he saw such a prerogative doctrine to be
unconsonant with several recitals an d on e enact ment in that gran d act
of Parlia ment the petition of right in the 1 6 th of Charles the F irst
H e saw it also to be irreconcilable with the o pin ions declared by so me
of the greatest lawyers of that ti me to a co mmittee of the whole H ouse
of Co mmons sitting on martial law na mely Sir E d ward Cocke M r
Moy after wards A ttorney G en eral Mr Rolle after wards Sergeant at
”
“
Mr B anks afterwards succes
Law an d author of the
Abridg ment
si v ely A ttorney G eneral and Lord Chief J ustice of the Co mmo n Pleas
and Mr Mason distinguished both as a la wyer and a me mber of Parlia
me nt for which O pinions the author begs leave to refer to the p reser
vation of the m in the Appendi x to Rushworth s third volu me F urther
the author found such a latitude of martial law e qually crossed by the
d octrines of Lord Chief J ustice H ale as e x pressed in his manuscri pt
an d un printed collections on the prerogative T his the author trusts
will wi thout for the present looking fur ther su ffi ciently at le ast a polo
gi z e for the strong ter ms used in those parts of his follo wing o pinio n i n
the G rogan case which relate to martial law even though volu mes of
cruel and irregul ar practice during the sad e x tre mities of civil war
should be laboriously collected to overco me the potency O f the etition
R
of right ; and of the high grave legal authorities the author incl usively
”
relies u pon as s peaking the sa me language
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follo ws the O pinion but it is o mitted as not being necessary
for the purposes of this discussion "
H
ere
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