fere with its duties beyond that of the suspension of this particular warrant. General Jackson at New Orleans disregarded the command of the judiciary,“ in time of war; ” and was subsequently fined for contempt. He paid the amount cheerfully, and with it, that deference to the supremacy of the civil power, which he never failed to assert over the military. The fine was subsequently refunded to him, by direction of Congress, which was a testimonial to his integrity, without any confession of his right to disregard the orders of the court. He might well have maintained, had that been the question, that by virtue of the grant now under discussion, his suspension of the writ was so far legal as to exempt him from liability to injured persons on account of the act. But even then, his exemption could only be established by showing that the public safety demanded it.

The language of the Constitution partakes far more of the character of a guarantee of the rights of the Habeas Corpus Act, than of a delegation of power to suspend it. It reads: “The privilege of the writ shall not be suspended,” except in certain cases of “rebellion or invasion." The means of judging when the public safety may require it, is necessarily confined to the au. thorities of the locality. This was peculiarly so when the Constitution was adopted. It exhibits, we imagine, the intention of its framers. Had it been their purpose to confer the right upon Congress, they would surely have said so.

If it was their purpose to provide for local contingencies, they would most naturally have entrusted the right with persons of the place, who could best determine when the public safety is endangered and therefore the suspension required.

Nothing is better established than that the governments of the States and the Union are purely civil governments. Military authority is not only no part of their polities, but is excluded from their administration, by positive law and long and well settled national habits and traditions. This is confirmed by the whole analogy of the governments of the States and the Constitution of the United States. As Hume says of England. "A free monarchy, in which every individual is a slave, is a glaring contradiction.” There is, we maintain, in these habits and traditions, a moral power

scarcely less cogent and binding than the obligations of the Con. stitution and laws. They constitute the very basis of goveröment. It was the violation, on the part of England, of these traditional rights, far more than the actual sacrifice of material interests, that *led to the war of the Revolution. In the great act which declared our separation, we proclaimed to the world that the king had " affected to render the military independent of and superior to the civil power ; " that he had deprived us of “the benefits of trial by

jury;" that he had created new offences; that he had quartered soldiers upon the people.

We allude to these records of history to show the force of certain ideas or convictions, which, we maintain, constitute a part of our free system of laws.

The authority claimed and exercised by Congress to suspend the functions of the judiciary, or to authorize the President to do so, is not only inconsistent then with the political governments of the States and the Union, but in plain opposition to the national habits and traditions of the people. Nothing short of absolute necessity, involving, through its agency, the preservation of the Union, could have justified the lodgment of such a power with the army; and we are bound to show, before we acknowledge its existlance there, not only the great peril of the state, but that its exercise is necessary to its preservation. There is a total absence of words conveying authority to any particular person or department. This leaves the clause to be construed by the application of general principles, having in view, at all times, the character of the States and the Union, and the habits and traditions of the people. Nor must it be forgotten, that general rebellion, embracing all the States, is quite impossible. There will always be what we call loyal States; for without loyal States there can be no pretence either for rebellion or Union. The proposition to cripple the civil administration of the faithful, in order to conquer and subdue the unfaithful, is too monstrous for consideration. If punishment is to be inflicted, let it fall upon the transgressor. It is enough for the loyal people that they employ themselves and their means to put down the disloyal. They are limited in this work to the enforcement of the laws. They are willing to sacrifice their blood and treasure to this end, but not their civil institutions, their freedom, and their manhood.

It is certainly more in consonance with our system to admit the right of Congress to enact the suspension, than to lodge it in the hands of the Executive. At least there is one objection less to its exercise by the legislature than by the President. But it is unnecessary and suicidal to confer it upon either. That it has been received and enforced by Congress, as a legislative grant, in the most arbitrary and unjustifiable manner, is the very best proof that it should not bave been placed in the hands of that body. The precedent goes for nothing, beyond the solemn warning it conveys to the people of the danger, disorder, and demoralization, which must ever follow the surrender of the civil to the military power. It is another impressive illustration of the principle we have advanced, that too much power, in a free government, is a source of weakness, rather than strength. It is undeniably true, in the present instance, that the Union sentiment of the people has become fearfully weakened by this and kindred measures, which have gone

far to prove that free governments are made for sunshine and not for the storm. Of course, such things indicate, if they have any political significance at all, that the federal system was radically defective, that it needed aid, not of military force, not of patriotism and determination on the part of the people to sustain it, but of measures, which it failed to authorize, or worse yet, which it positively prohibited. In this category we place the unwarranted suspension of the writ of habeas corpus, the suppression of trial by jury, of free speech and the press, and finally, the general inauguration of martial law, all over the Union.

If the right of suspension was conferred upon Congress or the President, the language used being general, in respect to the extent of its exercise, over all the territories of the Union, the power is equally so. There is not a word of limitation, of this nature, in it. “In cases of rebellion or invasion, when the public safety requires it," the suspension is authorized. This clearly contemplates cases of rebellion in certain localities, and the inference is fair, that it was intended to confine the act of suspension to the places or States where it might exist. It was very much the habit of the times

when the Constitution was adopted, to take a practical view of things. To authorize the suspension of the writ in New York, because the people of Virginia had entered into rebellion against the authority of the former State through that of the Union, would be little less than absurd. It would certainly raise a reasonable presumption that New York was a party to the rebellion, and so on through all the States.

This view is completely sustained by the proceedings of the Constitutional Convention, touching this particular grant.

The proposition to confer the power, in general and unqualified terms, upon Congress, was embraced in Mr. Pinckney's plan of a constitution, presented on the 20th of August, 1787. This particular subject came up, for consideration, on the 28th of the same month, when Gouverneur Morris submitted a substitute for the proposition of Mr. Pinckney, in these words:

“ The Privilege of the Writ of Habeas Corpus shall not be suspended, unless where in cases of rebellion or invasion the public safety may require it."

There was no difference of opinion in the convention on the first part of this substitute, viz. : “ The privilege of the writ of habeas corpus shall not be suspended,” it was therefore adopted nem. con. The vote on the remaining portion of the substitute, to wit: "unless where in cases of rebellion or invasion, the public safety may require it," stood, seven States for it, and three against it. So the Morris substitute, entire, was adopted.

This is the simple history of the adoption, by the convention, of the clause in question, and afterward, so far as we can find, no reference is made to the subject. There was very decided opposition made to giving power in any contingency to suspend the writ. It Kas declared unnecessary, unsafe, and especially in the general and unlimited form proposed by Mr. Pinckney. It was distinctly and positively said, in behalf of the proposition to authorize the suspension on some terms, that its general suspension would be an impossibility, for it would signify that all the States might be in rebellion at the same time, or that the civil establishment might be overthrown in all the States at the same time. Hence, in order to satisfy the opponents of the power, Mr. Gouverneur Morris framed his substitute in a negative form, authorizing the suspension only "WHERE, in cases of rebellion or invasion, the public safety may require it.” How, and when, this significant word, WHERE, was lost, and “when” put in its place, we cannot discover from the record. The Madison Papers make no mention of the subject matter again after the 28th of August, up to the reference of all the adopted provisions to the committee on order and finish, from which the Constitution came back for signature. There was no consideration, by the convention, of this particular matter again. Whether the word "where," in Mr. Morris' substitute, was so written that the copyist made it "when," or whether the committee on form, without much reflection, substituted the latter for the former, we leave to the curious to determine.

Meanwhile the original design of the convention of the States is made too clear to be disputed. Mr. Pinckney's general legislative power of suspension was rejected; three States opposed any restriction; while seven States were willing to confer the power of suspension, where there should be rebellion or invasion. This simple history of the origin of the grant, indicates the spirit and purpose of the body which framed the Constitution.

There is no light in which the subject can be seen, which gives the least color of authority to suspend the privilege of the writ, be-. yond the district, State, or section, which may be invaded or in rebellion. The design certainly was to uphold the Union and enforce its laws. To this end the employment of the military was authorized. It is absurd to claim that the authority of the latter in such

is not limited to those in rebellion or the public enemy, Not so, however, if the right to suspend the writ has been lodged with Congress or the President, because they are two chief departments of the Federal Government, and the power being general ih its language, they may command it over all the United States, at least so far as to interdict the Federal Judiciary.

The Union was ordained by sovereign States, acting separately and remaining in the confederation with all their original powers of government, excepting those which they delegated. The delegated powers are almost exclusively of a political nature, such as foreign intercourse, commerce, and navigation, the regulation of the value,


« ForrigeFortsett »