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INTRODUCTORY.

THE right of the President of the United States, in time of rebellion, and when the public safety in his judgment requires, to arrest and detain a freeman, in temporary denial or delay of bail, trial, or discharge, that is to say, of his privilege of the Writ of Habeas Corpus, has been exhibited by writers in our Journals, in three points of view:

1. As the lawful exercise of military power, derived to the President as commander in chief of the military force now on foot for the suppression of insurrection :

2. As an incident of martial law, in time of war within the country, repelling the interference of the civil authority in all cases in which the restoration of order requires the application of the military principle:

3. As a civil power springing from the Habeas Corpus clause in the Constitution, and to be authorized by Congress, in like manner as by the Parliament of England, by delegating to the President the power to arrest and detain persons, within the limitations prescribed by the Constitution.

The Attorney-General's opinion is not comprehended by this division. That opinion is founded on the alleged co-ordination of the three departments, and upon the co-equal authority of the Executive, to interpret the Constitution in what regards the Executive duties and powers, and especially his duty and power to protect and defend the Constitution, and to suppress insurrection and rebellion against the government of the nation; and in the execution of this duty and power, to arrest and detain persons who are in either actual or suspected complicity with rebellion.

The bearing of the Habeas Corpus clause in the Constitution, is not particularly expounded in that opinion, nor is it specially relied upon or the President's authority; neither is the Presi

dent's power treated as a military power, but as a civil power, exercised in the performance of the civil duties of his office.

It is not the purpose of the following remarks, to treat the subject from either of the first two points of view, nor to affirm or reject the argument of the Attorney-General. The exclusive design of the writer is to consider the right of the President to arrest and detain, of his own motion, in the required conditions, as derived from the language of the Constitution, and from the nature of the Executive office.

There are two modes of treating this matter. One of them is the merely legal and artificial. The other is the constitutional

and natural.

In the first mode may be presented an argument against the President's power, until Congress have authorized it, which it may not be easy to answer, if the premises are admitted. The argument is as follows:

The language of the Habeas Corpus clause in the Constitution, says nothing, directly and explicitly, in regard to the department of government, which is to exercise the power it gives; but it must be viewed in the light of Parliamentary law in Eng land, and by reference to the customary sense in which such language was received in the country from which we have taken the great body of our laws. This, it must be presumed, was the sense in which the Convention used this language in the formation of the Constitution.

Suspended, applied to the privilege of the writ of Habeas Corpus, means the temporary withdrawal or withholding of the legal operation of that Writ from an imprisoned person. The Writ is instituted by law. Law alone can withdraw or withhold its operation, in any case to which it applies. There must, therefore, be a law or statute to countervail the law by which the Writ is given, before the operation of the Writ can be withdrawn or withheld from a person who is imprisoned.

To create a suspension of the privilege of the Writ in the case of an imprisoned person, there must then be, 1, a statute or law which withdraws the privilege from the contemplated case of imprisonment; and 2, an arrest and imprisonment within the purview of that statute. Effectual suspension is, therefore, a conjoint operation of law and act; the operation of a law to suspend the Habeas Corpus privilege in reference to the contem

plated arrest, past, present, or to come, and the operation of the act of arrest or imprisonment referred to by the law.

This is the meaning of Suspension of the privilege as it was understood and practised in the Parliament of England, when our Constitution was formed.

Although our Constitution does not expressly say which department of the government may suspend the privilege, it necessarily implies, by the use of such language, that the Legislature shall first pass the law, and that the executive officer shall then perform or order the act of imprisonment and detainer. This is the merely legal and artificial argument.

But the language of the Constitution, in this particular, was not the customary language of the day, either in England or in the United States; and the Parliamentary practice was the very thing that was to be strenuously rejected and excluded. The language of the Habeas Corpus clause in the Constitution was new, and is peculiar; and it must be viewed in its own light, and in the light afforded by other parts of the same Constitution.

The Constitution does not use the word suspended in an artificial or technical sense, for it had none in this relation; nor as consisting of two acts, an act of legislation, and an act of imprisonment; but as one thing under the sanction of the Constitution. The warrant of arrest, with the order that the party's privilege be denied for a season, is suspension under the Constitution. A temporary denial of the privilege by a single act, founded on the authority of the Constitution, is all that is necessary to suspend the privilege.

The power to imprison, and to deny or delay a discharge from imprisonment, is an executive power. All the conditions of the exercise of the power described in the Habeas Corpus clause, are of executive cognizance, that is to say, rebellion or invasion, and the requirement of the public safety in the time of either. No legislative act is necessary or proper to give the cognizance of these facts to the executive department. No act of Parliament has ever been passed in England, or has been proposed in Congress, to take away or abridge the executive power in regard to these facts. All the acts of Parliament which deprive persons of the right to bail or trial, in derogation of the Habeas Corpus Act of Charles II, leave this power and discretion to the Crown. They cannot be taken away by Congress without invading the constitutional limits of the Executive office. They cannot be

war.

given by Congress to the Executive without supererogating what the Constitution gives. The only thing required to bring this power and discretion into operation in the conditioned cases, against the privilege of the Writ, is an authority superior to the law which authorizes, or may authorize, the Writ; and that is the authority of the Constitution in the Habeas Corpus clause. The power to suspend the privilege of the Writ, is moreover inseparably connected with rebellion or invasion,-with internal The direction of such a war is necessarily with the Executive. The office cannot be deprived of it. It is the duty of the office, in both its military and civil aspects, to suppress insurrection, and to repel invasion. The power to suspend the privilege, is supplementary to the military power to suppress or repel. It is a civil power to arrest for privity or supposed privity with rebellion, as the military power is to suppress by capture for overt acts of rebellion. They should reside in the same magistrate, as inseparable incidents of the Executive power, in time of internal war. The aversion to this doctrine, where it exists, is a reminiscence of the English practice, when the Crown claimed the right to suspend the privilege in time of profound peace and order; or it is a misconception of the grounds of Parliamentary action, since the Habeas Corpus Act of Charles II.

The true character of every act of Parliament in this relation, and of the only bill that has been proposed in Congress, has been executive, and so it must be. They have said, in effect, and must say, that the act of the King's Council, or of the President, shall be final. The only aspect in which an act of Congress to this effect can be regarded as legislative, is as the grant or creation of an authority to detain against the writ; but this is supererogation, because the Constitution gives it. The only question is, to which department of the government, the exercise of it belongs, by the general scheme of the Constitution; and according to the delineation of the departments in that instrument, the exercise of the power appertains to the President.

This is the broad constitutional and natural argument; and it is in support of this hypothesis that the following remarks are made.

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