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on any other basis than the maintenance of a free, impartial, and unrestricted judiciary. This freedom, too, must be absolute. It must be, as Goethe says, "a courageous magistracy,” for that is the greatest blessing a free people can have. The rights of the Habeas Corpus Act, under it, are inalienable and indestructible. Their suspension, by whomsoever ordered, undermined and destroyed the whole scheme of government. It was not a mere political offence, but a fatal blow at the system, which alone was the object of preservation and the source of authority. There was no extravagance in the speech of Mr. Burke, as will be seen by an examination of the duties of the judiciary.
It is the province of the legislature to enact laws for the punishment of crime; but crime exists alone by the decision of the courts. The entire innocence of parties charged with offence, is presumed until they are convicted by the tribunals of justice. Hence the classification of offenders, as suspected and convicted persons. This distinction is clearly recognized in the laws of the States, and in the Constitution and laws of the Union. While no limitation is put upon the judges, in dealing with convicts, simply because they are outlaws, they are charged with the greatest circumspection, and bound to the severest restraints, touching the treatment of persons suspected of crime.
The reason of this is too obvious to justify comment. It is the most vital feature of a government of laws. There must be certain written evidence of guilt submitted to a peace officer before suspicion can legally attach to the offender. He cannot be held as a suspected person on any other condition. If he has violated the law, let the proof of the facts be laid before the judges of the law. It is just as reasonable to expect the judiciary to be proficient in the military service as to suppose that soldiers are qualified to discharge the duties of the legal profession.
The Federal Constitution provides, what was supposed, at the time, to be the amplest precautionary restrictions, upon any and all persons having the right of arrest and imprisonment, against the abuse of such right and its corresponding injury. It declares, for instance, that "no warrant shall issue, but upon probable cause, supported by oath or affirmation ;” and “no person shall be held in answer for a capital or other infamous crime, unless on a presentment or indictment of a grand jury;” and “no person shall be deprived of life, liberty, or property, without due process of law; and “excessive bail shall not be required."
These provisions apply exclusively to persons suspected of crime, and, in no case, to persons convicted of crime. There is nothing in them but the exercise of a wise and humane precaution against the abuse of power, by magistrates or others in authority,
The direct office of the writ of habeas corpus is to recover the freedom of a citizen wrongfully taken away.
This law was enacted in aid of the provisions of the Constitution quoted, and exclusively for the benefit of suspected persons. It recognizes the possibility of illegal imprisonment, in spite of the protective features of the organic law, to which we have referred, and provides for a rehearing of the case.
There is nothing new in all these ordinances and regulations. They are a part, and a necessary part of the machinery of all free governments. They are the very features of such a system which distinguish it from absolutism. They take away, not only all right to exercise individual will and judgment, but every semblance of authority to do so. They make the law supreme, by prescribing certain forms of proceeding; and then, conceding the possibility of its evasion, they provide the means of recovering the freedom of a citizen thus illegally deprived of his liberty.
All these safeguards against oppression are of no possible account without an appropriate agency in the government to enforce them. A right, without a corresponding remedy, in the event of its violation, is a mere word of promise to the ear. The Federal Constitution is not only a chart, pointing out political shoals and treacherous currents, but a complete system of political navigation. It is a state, fixing with almost mathematical precision, the rights of persons and property, and on this basis giving power to enact and enforce laws. It was intended that these rights should be maintained precisely as they are placed in the compact. For this distinct and avowed purpose, among others, the judiciary was organized. Its constitution and powers are explicit. It is made a coördinate department of the government, its jurisdiction extending over all federal grants of which it is the only judge. With no authority to enact laws, it is its duty to determine the legality and constitutionality of those enacted by Congress.”
If we have fairly stated the office of the judiciary, it is hardly necessary to add that its suppression is fatal to the Union. It leaves a quivering, lifeless body to testify that the heart has been torn from it by the ruthless hand of ambition.
It is certainly a wonderful turn of the wheel of fortune, which imposes upon the American people an occasion for the discussion and maintenance of rights of persons and property, which are not only inherent in every freeman, but which are acknowledged in every line of their Constitution and laws. Nothing but the most astounding events of the day could have provoked this extraordinary condition of things. We cannot believe, as thousands of the best informed unquestionably do, that a disposition anywhere prevails to overthrow our free system of laws. That we have committed great mistakes in managing public affairs; that we have shamefully violated almost every principle of constitutional government; that we have conceded too much power to the Executive, where power is never legally exercised; that we have, in short, trusted most to that which, in the nature of things, should be trusted least, cannot be questioned. The plea on which these things bave been done, too, is scarcely less criminal and treasonable, than the acts and omissions of which we complain. A large portion of the people proclaimed that the civil commotions of the state made it necessary practically to abandon the government of the Constitution in favor of the existing Administration. This mon. strous heresy has borne its legitimate fruit. We have a despotism without a dynasty.
With no partiality for dynastic government, and no belief in the possibility of its maintenance, in the present temper of the American people, it is certainly much to be preferred to the reckless system now in force at Washington.
The President of the United States, by a strict construction of the Constitution, is endowed with no creative powers whatever. He is called the Executive, and required to fill certain offices, by the advice and consent of the Senate. As the political head of the naţion, it is his duty to conduct all foreign relations and generally to see to it that the laws shall be faithfully executed. He is not intrusted with the power, by virtue of his own action, to execute a single law of Congress governing the ordinary affairs of the people.
It is the province of Congress to create all local executive offices necessary to carry into effect the laws of the Union. The President may appoint incumbents, by the consent of the Senate. He is a sort of commander to give orders to engineers, whose duty it is to execute the laws. In the event of failure, his power is exhausted by removing the delinquent, who is then turned over to the judiciary, where justice is administered and the rights and dignities of the state vindicated. There is not an element of constitutional government in the executive department. Compare this theory of the Union with its present administration, and let us see what we have done.
Without the dignity which commands' respect, the stability which assures order, or the magnanimity which often springs from the exercise of supreme power, we have a weak, vacillating political hybrid, so vulgar and offensive as to be no longer endurable even to its own parasites. It is the revel of the midnight robber in the house of the peaceful but despoiled citizen. It is that prodigal use of power, which in itself establishes its abuse.
The governments of the States and the Union are not a mere arbitrary arrangement of covenants and obligations. They were founded on great moral rights and principles, every one of which would be binding, without a single section of law authorizing their enforcement.
It would, for instance, be wrong and sinful to take life, liberty, or property without resorting, in every case, to recognized legal tribunals; so of trials and punishments, without an impartial jury; so of arrests of persons, without written proof of guilt; so of forfeitures of property for treason or other felony. It would be wrong and sinful, in the event of arrest, to deny the right of a rehearing.
Any departure from these settled principles, aside from the guilt involved in the deliberate violation of the Federal Constitution, is a great moral crime. The rights assailed are inherent and indestruc
tible, except by violence. The President, in no event, can have jurisdiction over them. They are matters which, in their very nature, come within the exclusive government of the judiciary. The latter is far more an executive department, so far as the enforcement of laws is concerned, than that of the President ; because it is charged with the special duty of enforcing laws, and endowed with absolute power to determine their binding force and constitutionality. For illustration, the Constitution declares that "treason shall consist only in levying war against them (see Sec. 5), or in adhering to their enemies, giving them aid and comfort; and that “no attainder of treason shall work corruption of blood or forfeiture, except during the life of the person attainted.” Convictions for treason and forfeiture of property on any other ground than this are void. It is the exclusive office of the judiciary to declare them so, and to hold to legal account those who act in violation of this fundamental law of the Union.
But it is urged, we repeat, that pressing exigencies of public affairs demand the exercise of unrestricted power by the chief of the state; and justify a disregard of acknowledged principles and obligations of law. This is the philosophy of despotism.
Wherever it prevails, we apprehend, however, it will be found that extra-constitutional measures have not only preceded such exigencies, but caused them—that civil commotions have been fomented for the sole purpose of justifying such measures. Upon this point we need refer only to the conduct of the Federal Government, during the existing war, in all the border Slave States; to the policy adopted to degrade those States into the merest dependencies upon the public administration; to the suppression of the judiciary in all the States, which might otherwise have vindicated the laws of the Union; to the exercise of legislative powers by every local military commander; and finally, to the practical exercise of supreme and absolute power, over the people, by the President of the United States.
These examples of usurpation not only prove the wickedness of the pretence that extra-constitutional measures were demanded to meet unlooked for and overwhelming difficulties; but they show conclusively, in the sequence of events, that such difficulties were