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 have 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 was 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 substi

tute 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, beyond 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 cases " 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 in 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,

of foreign coin, and so on through the whole range of the delegated interests. The Federal Judiciary was so constituted as to take cognizance of these things, and at the same time, to act in obedience to the civil institutions of the States-" to adopt and follow the decisions of the State courts," in the language of Chief-Justice Taney, "in all questions which concern merely the constitution and laws of the State." When we reflect that titles to real estate and other kindred matters are almost exclusively determined by State laws, and that the jurisdiction of the courts of the latter is absolute over quite all the relations of the people, the reason of this obedience will be seen.

In view of these things, how is it possible, in the absence of direct and positive authority, to that end, to sustain the conclusion, that the writ may be suspended over all the Union, including the Federal and State Judiciary, by the mere enactment of Congress, or the more summary process of Executive proclamation ?

The least that can be said of such a proceeding, if the power is conceded, is, that Congress is clothed with authority, in fact, to change or overthrow the whole scheme of government. It is folly to contend that an elective republic can be maintained on any other basis than an untrammelled, independent judiciary.

It is most unlikely that a people, unreasonably jealous of the aggregate civil powers of the Federal Union, would clothe any department thereof with the right and the means of overthrowing the civil institutions of the States and transforming their Union into a military despotism. All this is possible by the exercise of such a power. The first step in the progress of the transformation, is the removal of a tribunal which has exclusive power to judge of the constitutionality of the acts of both Congress and the President.

But it is answered, it is the suspension only of a single function of the courts, and that, in all other respects, they are as free to act, within the scope of the law, as before.

If

If this special pleading has any force, it proves too much. the courts are free to execute the laws, there can be no justification for the suspension of the writ. If the civil government is ample, the intervention of the military is surely wanton. The writ of habeas corpus can do no injury to a free people, or a free state when

its laws are not obstructed by civil disabilities. It was ordained in aid of the people, and expressly to prevent the violation of their rights of person, by the arbitrary acts of those in authority No honest man ever sought the suspension of this great remedy, when the courts were free to exercise their judicial functions.

It is not, then, the mere suspension of the writ which is demanded; it is the practical overthrow of the judicial power of the state. So we find it. The President made it partial at first; and followed the act almost immediately by the declaration of martial law. Finding the two measures to work admirably in the interest of consolidation, they were again followed by another proclamation, suspending the writ in all the States and Territories of the Union. But it was not alone, we repeat, the writ of habeas corpus that was suspended; all the powers of the judiciary, State and Federal, were either interdicted or placed under the actual government of military commanders. These events are too recent and well authenticated to be doubted or denied. We live to-day under the surveillance of marshals and provost marshals; and are everywhere told, that the President was authorized, by virtue of power conferred upon him by Congress, drawn from an express constitutional grant, to do and direct these things!

Having shown, as we think, that neither Congress nor the President has any legal right to suspend the writ, and that its suspension is only authorized, in any event, over certain localities where the overthrow of the civil authorities has been effected by "rebellion or invasion," and then only by the supervening power of the army, we now propose to discuss the legal limits of suspension, by whomsoever declared.

The subject comes before the country in the form of a paragraph taken from the Constitution of the United States. In another part of that instrument a judicial department is authorized. In order that we may be perfectly accurate, we repeat entire the second section of the third article, which covers all the grants of power made to the Federal Judiciary:

"The judicial Power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority;-to all