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 The people of the United States, through State Conventions, 
 ordained that the Constitution should be the supreme law of the 
 land; and to secure the blessings of liberty to themselves and their 
 posterity, by the 1st clause of the 9th section of the 1st Article, 
 declared that 
 
 " The privilege of the Writ of Habeas Corpus shall not be 
 suspended, unless when, in cases of rebellion or invasion, the 
 public safety may require it." 
 
 It will be observed that this does not, nor does the Constitution 
 elsewhere, grant this privilege to the people. It assumes that they 
 have it. 
 
 It prohibits the Government of the United States, and all its 
 departments, under any and all circumstances, from totally depriving 
 the people of this, their privilege ; but it does grant the power to 
 suspend that privilege when, but not till, two things shall concur 
 and have been determined by the competent authority, viz : 
 
 1. A rebellion, (or an invasion,) and 
 
 2. That the public safety requires it to be then suspended. 
 This clause grants, that, under these concurring conditions, that 
 
 power may be exercised by — whom ? That is the inquiry. 
 
 It is affirmed by some, that that power is granted to the Presi- 
 dent, and by others that it belongs to the Congress. No one has 
 thus far contended that it belongs to each of them, nor yet to the 
 Judiciary. It follows that the power can be exercised only by 
 the Congress or by the President. 
 
 For the President's power it has been said : 
 
 I. That the phrases, "privilege of the Writ," and "suspended" 
 as predicated of that privilege, are expressions unknoAvn to the 
 common or to parliamentary law — and that "suspending the Habeas 
 Corpus Act" is an "inaccurate expression," as the Act "was 
 never for a moment suspended." That " suspending the privilege" 
 
 (3) 
 
was a phrase "first used in the Constitution of the United States," 
 hence all analogy from the English law and Constitution must be 
 discarded. 
 
 II. That a temporary denial of the privilege by a single act 
 (founded on the authority of the Constitution) is all that is neces- 
 sity to suspend the privilege. And as this power to deny (tem- 
 porarily) a discharge "is an executive power," therefore to 
 suspend the privilege is an executive power. 
 
 III. That all the conditions of the exercise of the power (to 
 suspend), that is to say, rebellion or invasion, and the requirement 
 of the public safety in the time of either, are of executive and not 
 of legislative cognizance. And as the power (of suspension) can 
 only be exercised by that department which can take this cogni- 
 zance, therefore the Executive only can exercise it. 
 
 IV. That the only thing required for the exercise of this power 
 to suspend, (given the conditions,) is an authority above the law 
 which gives or may give the Writ ; but that authority is in this 
 clause of the Constitution itself, therefore a legislative power is 
 not required ; and as the framers of the Constitution did not give 
 the power to a department not required to exercise it, hence they 
 did not give it to Congress. 
 
 V. That this power, (to be exercised only in case of internal 
 war, viz., rebellion or invasion.) necessarily belongs to him only 
 whose duty it is to put down the war, (i. e., rebellion,) but it is the 
 duty of the President {only ?) to suppress rebellion, therefore, this 
 power to suspend the privilege belongs to him only. 
 
 VI. Congress, by any law it might pass, could only grant an 
 authority to the President to suspend, but that authority has already 
 Keen given (to the President?) by the Constitution; therefore their 
 law would be useless, and as the framers of the Constitution can 
 nol be supposed to have authorized Congress to do a useless act, 
 hence they did not give this power to Congress. 
 
 A gentleman, of Philadelphia, of high legal reputation, has pub- 
 lished an argument to prove that the Convention which prepared 
 the Constitution of the United States, meant to give to the Presi- 
 dent, and not to Congress, the power to suspend the privilege of the 
 Habeas Corpus. These propositions arc the pith of his argument, 
 and it is in reply to them that the following remarks are submitted. 
 
In considering this subject there are certain things to be con- 
 stantly kept in mind. They are, 
 
 1. That it is not the question whether the Government or any 
 of its departments would, in a time of extreme peril, he excusable 
 for suspending the Habeas Corpus, or arresting upon suspicion, or 
 for doing any other act, not warranted by the Constitution, but 
 which the public safety might require. 
 
 2. It is not a question about the power of the General Govern- 
 ment, or what it may or may not do. 
 
 8. The question is — to which of two of the departments, viz.. 
 the Executive or the Congress, did the framers of the Constitution 
 mean to give the power ? 
 
 4. We may think that, upon every ground of reason and 
 fitness, the President alone ought to have the power; but if the 
 authors of this Constitution did not give it to him, then we dare 
 not say he has it. 
 
 5. In seeking for their meaning we must look at the subject, not 
 from our own, but from their point of view. Through what medium 
 did the} 7 look at it? It was doubtless a very different one from the 
 present, but it is nevertheless the only one through which we should 
 view it. 
 
 The clause itself has already been quoted. It has correctly 
 been said that the sentence is elliptical ; but that it may be read 
 with the proper ellipsis, and show more clearly the sense ascribed 
 to it, by those who argue for the President's power of suspension, 
 let it be written thus, viz : 
 
 "The privilege of the Writ of Habeas Corpus shall not be sus- 
 pended, unless when, in cases of rebellion or invasion, the public 
 safety may require it;"' [and then the President may suspend it.~\ 
 
 Those who contend that the power of suspension is in the Presi- 
 dent, do and must read that section as it is thus written ; while 
 those who affirm that the power is in Congress alone, must substi- 
 tute the Congress for the President. 
 
 The history of the clause has been stated with conciseness ami 
 accuracy, but as it will be referred to in the following remarks, a 
 re-statement of it, with one or two additional facts, may aid in 
 its interpretation. 
 
When the Convention was ready to proceed to business, Mr. 
 Edmund Randolph, of Virginia, offered fifteen resolutions, as the 
 basis of a plan, and Mr. Charles Pinckney, of South Carolina, 
 offered, as the plan of the Federal Government, sixteen articles. 
 
 Mr. Randolph meant by his propositions merely to introduce 
 other and more particular ones, which would explain the outlines 
 of the system he had in view. 
 
 The plan of Mr. Pinckney seemed designed as a complete Con- 
 stitution ; and, in its general tenor and form, it very much resembled 
 the Constitution afterwards adopted. 
 
 Article VI. related to the Legislature, of the United States, and 
 in it were grouped nearly all the powers given to, and the restric- 
 tions upon, that department; after an enumeration of the several 
 powers so given, it contained this clause: 
 
 "The Legislature of the United States shall pass no law on the 
 subject of religion, nor touching or abridging the liberty of the 
 press ; nor shall the -privilege of the Writ of Habeas Corpus ever be 
 suspended except in case of rebellion or invasion." 
 
 With the exception of Mr. Patterson's plan, which was offered 
 on the 15th and rejected on the 19th of June, those of Mr. Ran- 
 dolph and Mr. Pinckney, were the only ones offered. The Con- 
 vention, with those two plans before it, resolved itself into a Com- 
 mittee of the Whole House, and then took up Mr. Randolph's 
 lift ccn resolutions, which, one by one, they debated and amended, 
 till the fifteenth of June, when the Committee reported to the 
 Convention nineteen resolutions, based on Mr. Randolph's plan. 
 These were debated till July 2G, when all their proceedings (ex- 
 cept those relating to the National Executive, which they retained 
 for debate) were, together with the plan of Mr. Pinckney and the 
 resolutions of Mr. Patterson, referred to a Committee of five, or 
 of detail, who, on August 5, reported to the Convention a plan of 
 a Constitution, containing twenty-three articles. In the Vllth of 
 these were classed the powers given to, and the restrictions upon, 
 the Legislature, in like manner as in the plan of Mr. Pinckney. 
 
 Art. XI. related to the Judiciary, and the 4th section of it was 
 oe follows : — " Seo. 4. — The trial of all criminal offences (except 
 in case of impeachment) shall be in the State where they shall be 
 committed, and shall he hy jury." 
 
Other resolutions were from time to time afterwards referred to 
 the Committee of Detail, but in this, their first report, there was no 
 clause relating to the Habeas Carpus. 
 
 On the 20th of August, Mr. Pinckney submitted and the House 
 referred to the Committee of Detail, certain propositions, one of 
 which was this, viz : — 
 
 " The privileges and benefit of the writ of Habeas Corpus shall be 
 enjoyed in this Government in the most expeditious and ample 
 manner, and shall not be suspended by the Legislature, except 
 upon the most urgent and pressing occasions, and for a limited 
 
 time, not exceeding months." — Mad. Deb., 5. Ell. Deb., p. 
 
 434. 
 
 This was the second time that Mr. Pinckney had, among other 
 resolutions, offered one restraining the suspension of the privilege 
 of the Habeas Corpus, and on the 28th of August, and when Sec. 4 
 of Article XL, relating to the Judiciary, was under discussion, it 
 was amended, nem. con., so as to read : 
 
 " Sec. 4. — The trial of all crimes (except in cases of impeach- 
 ment) shall be by jury; and such trial shall be held in the State 
 where the said crimes shall have been committed ; but when not 
 committed within any State, then the trial shall be at such place 
 or places as the Legislature may direct." 
 
 Mr. Madison (5 Ell. Deb., p. 484) immediately adds,—" Mr. 
 Pinckney, urging the propriety of securing the benefit of the Habeas 
 Corpus in the most ample manner, moved that it should not be 
 suspended but on the most urgent occasions, and then only for a 
 limited time, not exceeding twelve months. 
 
 " Mr. Rutledge was for declaring the Habeas Corpus inviolable. 
 He did not conceive that a suspension could ever be necessary at 
 the same time, through all the States." 
 
 " Mr. Governeur Morris moved that " 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." 
 
 " Mr. Wilson doubted whether in any case a suspension could 
 be necessary, as the discretion now exists with the judges in the 
 most important cases to keep in gaol or admit to bail." 
 
 The first part of Mr. Governeur Morris's motion, to the word 
 " unless," was agreed to, nem. con. 
 
( >n the remaining part — New Hampshire, Massachusetts, Con- 
 necticut, Pennsylvania, Delaware, Maryland, Virginia, — 7 voted 
 aye ; North Carolina, South Carolina, Georgia, — 8 voted no. So 
 this clause was, as it is expressed on the journal, "added" to the 4th 
 section. It will be observed that in place of the word "when' 
 which is now in the Constitution, Mr. Morris used, and the Conven- 
 tion adopted, the word "where/ ' This was an amendment to a section 
 which provided for the place where trials should be held, and it 
 may be that Mr. Morris intended by the word "where" to limit 
 the suspension of the writ to the place where, in cases of rebellion 
 or invasion, the public safety might require it to be suspended. 
 Confirmatory of this are the words of Mr. Rutledge, which, briefly as 
 they are reported, show that he did not think " that a suspension 
 could ever be necessary, at the same time, through a?? the States" — 
 but only, of course, in a part of them ; and immediately after this, 
 Mr. Morris moved the foregoing clause. A little reflection must 
 have convinced him, however, that the discretion given to the sus- 
 pending power by the latter words of the clause, would allow it to 
 be suspended at the same time through all the States," quite as 
 well with "where" as with "when ;" hence if the clause properly 
 related to the Legislature, then the mover of it, and who, as the 
 Chairman of the Committee on Style and Arrangement, changed 
 this amendment from the Xlth Article, which related to the Judi- 
 ciary, to the IXth Article, which related to the Legislature, would 
 very naturally and probably substitute "when" for "where." That 
 the words were changed is not denied ; it does not appear that 
 the Convention made the change, and it is therefore probable that 
 Mr. Morris himself did it. The reason first assigned, and its influ- 
 ence upon the meaning of the clause, will be hereafter noticed. 
 
 Thus being made a part of the supreme law of the land, is this 
 power of suspension in the President, or in the Legislature ? 
 
 In the first place it has been said that " this is a political rather 
 than a legal question, — a mixed political and Constitutional ques- 
 tion." And what then? Does that render the question itself 
 easier of solution ? Call it what you will, it still recurs for an 
 answer. What is the meaning of the clause? 
 
 Doubtless here, as elsewhere, law may be divided into that part 
 which classifies and regulates the powers of the departments of a 
 
9 
 
 State, considered as a body politic, and that which regulates the 
 conduct of the citizens of the State; and questions which relate to 
 the former you may call 'political questions. 
 
 But what if you have not yet classified the powers of the former, 
 or do not even know whether such departments possess a certain 
 power, or to which one of two departments it belongs ? There 
 must be some one tribunal to determine whether the power exists, 
 and if so where it is lodged. Let the case be that a citizen who 
 has been imprisoned by the mere order of the President obtains a 
 Writ of Habeas Corpus, and his keeper in the fort or prison returns 
 that the President has suspended the privilege of the Writ, and has 
 ordered the detention of the prisoner, the question thus presented 
 is, can the President suspend the privilege of that writ ? 
 
 Is that rather a political than a legal question ? or is it not the 
 latter only, and one which the Judiciary alone can decide ? It 
 would seem that simply to state such a case would be to answer it 
 affirmatively. Judge Washington said of a like question — " This 
 question does not so much involve a contest for power between 
 (two departments of the Government) as the rights and privileges 
 of the citizen secured to him by the Constitution, the benefit of 
 which he may justly claim." — 5 Wheat. Rep., 22. And more than 
 forty years ago, Mr. Webster, in replying to a similar remark, 
 said, in the Convention to amend the Constitution of Massachusetts, 
 "We look to the judicial tribunal for protection against illegal or 
 unconstitutional acts, from whatever quarter they may proceed. 
 It is the theory and plan of the Constitution to restrain the Legis- 
 lature as well as other departments, and to subject their acts to 
 judicial decision, whenever it appears that such acts infringe con- 
 stitutional limits — and without this check, no certain limitation 
 could exist on the exercise of legislative power. The Consti- 
 tution, for example, declares that the Legislature shall not suspend 
 the privilege or benefit of the Writ of Habeas Corpus, except under 
 certain limitations. If a law should happen to be passed, restrain- 
 ing personal liberty, and an individual, feeling oppressed by it, 
 should apply for his Habeas Corpus, must not the judges decide 
 what is the benefit of the Habeas Coipus intended by the Constitu- 
 tion ; what it is to suspend it, and whether the act of the Legisla- 
 
10 
 
 tare does, in the given case, conform to the Constitution ? All 
 these questions would of course arise." 
 
 "It is a rule in construing treaties," and a much stronger one in 
 construing a Constitution, "that, from history and policy, as well as 
 language, are to be gathered the views of the parties making them." 
 — Johnson, J., 6 Wheat. 85. By the common law of England, every 
 freeman had the absolute and unqualified right to the liberty of his 
 person. To suppose that right, without the legal means of maintain- 
 ing it, or of regaining it, would be the highest absurdity ; therefore, 
 by the law he was entitled to be forthwith restored to his liberty ; 
 but as he might have violated the law, and, therefore, his liberty be 
 rightly restrained, the duly constituted Judges were commanded 
 to inquire and determine whether he had done so or not, and as 
 that could only be done by legal process or writ, it follows that 
 such writ must necessarily result from, and be coeval with, the 
 right itself ; the party imprisoned was thus of right entitled to the 
 writ ; which is, therefore, called by the common law a writ of right. 
 It was not one, the granting of which depended on the favor of the 
 King, or the discretion of the Judges, for that would have been to 
 make his will or their discretion the measure of the people's 
 rights. 
 
 At the common law, even in the reign of King Alfred, the most 
 ancient book in the law says there was no such thing as a writ of 
 favor, for they were all remedial writs, grantable as of debt, as due 
 of right. — (Mirror of Justice ; c. 5, s. 1.)* 
 
 That the common law did not allow the people to be im- 
 prisoned at the mere will of the King, and that they had a right 
 to be forthwith released from such imprisonment, did not hinder 
 the Kings of England from beating down the right, or delaying the 
 remedy. 
 
 From the time that King John ascended the throne, till James 
 II. abdicated, there was an undying struggle between the prero- 
 gative to imprison without bail, trial, or judgment, and the privi- 
 lege from arrest, unless by due course of law. 
 
 The ignorance and wilful disregard, by King John and his Judges, 
 of th<- old and accustomed laws and rights of the people, the do- 
 le injuries received from him in person, as well as from acts of 
 
 * "The Kights ami Liberties of Englishmen." 
 
11 
 
 general oppression, obliged them by force of arms to wrest from 
 him the Great Charter. What those chief and accustomed laws 
 wore, and how they had been violated, may be learned from the 
 Charter itself, and from the articles which they compelled him to 
 subscribe to immediately preceding it. 
 
 One of those articles shortly and forcibly expresses the right of 
 every freeman to his personal liberty, and forever forbids his im- 
 prisonment without due process of law. — Chap. 29. " Ne corpus 
 liberi hominis capiatur nee imprisonetur nee dissaisietur nee utla- 
 getur nee exuletur nee aliquo modo destruatur nee rex eat vel 
 mittat super eum vi nisi per judicium parium suorum vel per legem 
 terre." 
 
 The like words are in the Great Charter itself. But neither 
 John nor many of his successors appear to have regarded the most 
 solemn laws, their own Charters, or even their own oaths. 
 
 From the granting of Magna Charta till the time of Sir Ed- 
 ward Coke, he declared that it had been established, confirmed, and 
 commanded to be put in execution, by two and thirty several acts of 
 Parliament. But history has never been able to record the un- 
 numbered violations of that Charter, especially of its prohibition 
 of arbitrary imprisonment. 
 
 Among the devices to evade the privilege of the Habeas Corpus, 
 and to maintain the power of arbitrary imprisonment, it was pre- 
 tended that in the towers and castles of the King freemen might be 
 imprisoned by the order of the King and his chief officers, as if those 
 forts were not within a county, or as if the Writ of Habeas Corpus 
 did not run therein ; but to remedy that, even in the reign of one 
 of the most lawless and law-suspending Kings, Bichard II., it 
 was enacted that the King's castles and gaols, which were wont to 
 be joined to the bodies of the counties, but were then severed there- 
 from, should be re-joined to the same counties. So intent were the 
 people to secure their liberties entire and inviolate, that they added 
 to the resolves of the Parliament the sanctions of the Cburch and 
 of religion ; for by the fourth chapter of the Great Charter of 
 Edward L, the archbishops and bishops were commanded to ex- 
 communicate all those who, by word, deed, or counsel, broke that 
 or the prior Charters ; and the clergy proposed a formal and dread- 
 ful curse upon whomsoever should violate that, as in like manner in 
 
12 
 
 May, lii.").-;, the prelates of England had denounced whomsoever 
 should break or judge against the Great Charter of Henry III. 
 
 In the Petition of Right, 3 Charles I., Chap. 1., which was pre- 
 sented in 1628, it was stated that the people had oaths administered 
 to them not warranted by the laws ; that Commissioners had been 
 appointed by the King to proceed within the land, according to 
 martial law ; that when Writs of Habeas Corpus had been sued 
 out, the prisoners were remanded to prison upon a return that 
 they were held by the mere warrant of the King, signified through 
 the members of his privy council ; and these acts, and others of 
 the like nature, were declared to be wholly contrary to law ; and 
 the parliament demanded, and the King, failing in his attempt to 
 evade it, was compelled to declare that these were violations of the 
 ancient and' undoubted rights and liberties of the people, and that 
 if the alleged offenders had violated the laws and statutes of the 
 land, by the same laws and statutes also, they might, and by no 
 other they ought to, have been judged. Even this did not restrain 
 this King, or secure the people from arbitrary arrest. By usurpa- 
 tion and connivance, there had grown up a court called the Star 
 ( Tiamber, which, at first, pretended to inquire of the offences of 
 great men and State criminals, but, on whatever pretence it was 
 at first allowed to exercise its powers, it was soon made use of as 
 an instrument of arbitrary power to crush whomsoever the Minis- 
 ters and Secretaries of State and their favorites had a mind to put 
 out of the way, or to destroy. 
 
 It had no known rules or laws of procedure ; " Holding," as 
 Lord Clarendon declared, " for honorable that which it pleased, and 
 for just, that which profited." It disregarded Writs of Habeas 
 Corpus, and its victims were left to linger in confinement. 
 
 By the 10 Charles L, c. 10, the Parliament declared that the 
 proceedings of that Court were contrary to the rights and privi- 
 leges of the people, an intolerable burthen, and the means to 
 introduce an arbitrary government; and they forever abolished it. 
 Still that did not put an end to the unlawful imprisonment of the 
 people. For when Writs of Habeas Corpus were applied for, the 
 judges many times pretended to have power to grant or deny the 
 writ at their pleasure ; and, when they granted them, the jailors, 
 in turn, claimed, by custom, a right to keep the prisoner till a 
 
13 
 
 second and third Writ had been sued out, and served on them ; and 
 when the imprisoned and oppressed subject at length got the Writ, 
 the judges would often allege that they could not release, or even 
 take bail for his appearance to answer his accuser, because he was 
 a prisoner of State. 
 
 To debar these and the like evasions of the people's right to 
 the Writ, and to provide a complete and effectual remedy against 
 its obstruction, the Parliament passed the ever memorable statute 
 of 31 Charles the II., c. 2, known as the Habeas Corpus Act. 
 Yet, plain and stringent as were its provisions, even that did not 
 altogether secure the people from unlawful imprisonment; for, no 
 sooner had James the II. ascended the throne, than he claimed 
 the power, without the consent of Parliament, to dispense with 
 and suspend the laws and the execution thereof. 
 
 For that claim the people drove him from his kingdom, and by 
 the Declaration and Bill of Rights (which were declaratory only 
 of the common law and the rights of the people) it was declared: 
 
 "I. That the pretended power of suspending laws or the exe- 
 cution of laws by Regal authority, without consent of Parlia- 
 ment, is illegal." 
 
 It was to avoid, among other things, the arbitrary seizure of 
 their property and the imprisonment of their persons, without 
 cause shown by the King or his officers of State, that the people 
 emigrated to these Colonies. 
 
 In the Mother Country they had claimed these chartered pri- 
 vileges as their birth-right; but which, being refused to them there, 
 they came here to enjoy. Those great rights being theirs, so, too, 
 were these great remedies ; in full consciousness of their right to 
 which, they silently adopted them as their undoubted inheritance. 
 
 But as it was in England by the King, so it was here "the prac- 
 tice of some of the Governors to imprison the people without 
 bail." Indeed, in their arbitrary conduct, they often exceeded 
 that of their royal masters ! Nor were the Colonial Judges be- 
 hind either: witness the conduct of the Chief Justice of Massa- 
 chusetts on the trial of the Rev. John Wise and others. Being 
 denied the Writ of Habeas Corpus, they were at length put on 
 their trial ; they claimed the privileges secured to them as Eng- 
 lishmen by the Magna Charta and the Laws of England. The 
 
14 
 
 Chief Justice, however, informed them that they must not expect 
 "English analogies" would follow them to the ends of the earth, 
 and concluded by telling them that they had no more privileges 
 than to be sold as slaves. — Washbourne, Jud. Hist. Mass., 116. 
 
 And, in 1710, the Legislature of New Jersey was obliged to 
 denounce Judge Pinham for corruptly refusing to Thomas Gordon 
 the Writ of Habeas Corpus, which they declared was the un- 
 doubted right and great privilege of the subject. — Hurd, Habeas 
 Corpus, p. 114. As the Revolutionary struggle drew on, the 
 statesmen and people of this country saw clearly that it was the 
 King wdio was pressing upon their privileges; they felt that his 
 influence was great, was increasing, and would, if not checked, 
 deprive them of their rights ; and they w T ere conscious — what his- 
 tory has since clearly revealed — that it was under the controlling 
 influence of the King himself, that Lord North and his ministerial 
 supporters passed those arbitrary and impolitic laws which drove 
 a loyal people into rebellion. 
 
 Inspired by his will, the Ministers pressed, and had passed, the 
 Quebec bill, which decreed an arbitrary rule over the vast region 
 which included, besides Canada, the area of the present States of 
 Ohio, Michigan, Indiana, Illinois, and Wisconsin. It denied the 
 people the right of trial by jury, the Writ of Habeas Corpus, and 
 left them to the French process of Lettres de Cachet, more odious 
 than general search-warrants. This flagrant act was denounced 
 in the several Colonies, and the Continental Congress, in Septem- 
 ber, 1774. 
 
 With the records of all history before them; with the knowledge 
 of what their ancestors had suffered through the power which Kings 
 and their Ministers had claimed and exercised in arresting and 
 imprisoning the people, "that, even in the Colonies, it had been 
 attempted to vindicate and develop the efficiency of royal procla- 
 mations, both in suspending laws already made, and in legislating 
 for cases — not yet regulated by Statutory provisions." 1 Graham's 
 Hist., p. 90. That they had just solemnly declared that, to their 
 own knowledge, the King had suspended the passage of laws, and 
 even the power of the Legislature itself, and that although these 
 acts of the King had been done through a Legislature, yet they 
 ha<l been prompted by his arbitrary disposition, and carried out 
 
IS 
 
 by his influence and will. Their own hitter experience had shown 
 them "with how little equity absolute power is exercised even by 
 those who have shown themselves most prompt to resent the influ- 
 ence of its rigor upon themselves." — 1 Graham's Hist., p. 100. 
 
 Even, with their mild principles, the proprietors of Pennsylvania 
 had lately shown that they needed but the power to play the 
 tyrant; and Franklin, in commenting on their conduct, had just 
 said — "Power, like water, is ever working its own way; and •when- 
 ever it can find or make an opening, is altogether as prone to 
 overflow whatever is subject to it. And though matters of right 
 overlooked may be reclaimed and reassumed at any time, it can- 
 not be too soon reclaimed and reassumed ; and though protection 
 is the reason, and consequently should be the end of government, 
 we ought to be as much upon our guard against our protectors as 
 against our enemies." — 4 Gr. Col. Hist., p. 440. That was a 
 period when the pulse of liberty beat high. "In other countries." 
 said Burke, "the people, more simple, and of a less mercurial cast. 
 judge of an ill principle in government only by an actual grievance ; 
 here they anticipate the evil, and judge of the pressure of the 
 grievance by the badness of the principle. They augur misgovern- 
 ment from a distance, and snuff the approach of tyranny in every 
 tainted breeze." 
 
 Is it probable, then, that men, in whose minds these principles 
 of freedom, and even of democratic freedom, were engrafted and 
 incorporated, and who had just emerged from a struggle against 
 the will of one man, would at once, in framing their own Govern- 
 ment, give to one man — their Executive — a power to suspend their 
 privileges — a power which even he, whom they had called a tyrant, 
 could not exercise ; and not only give that power, but part with it 
 forever to him and his successors, and thus place it beyond the 
 control of the people, or their immediate representatives ? 
 
 One class of thinkers may, indeed, be predisposed to think that 
 most probable. For what has been said of the English Constitu- 
 tion may, in these days, be said of our own. 
 
 "Revolution and civil war have marked the influence of opposite 
 opinions with respect to the popular nature of our Constitution. 
 These dreadful and perilous scenes could not fail to transmit this 
 original division of sentiment to us — their posterity. The distinc- 
 
16 
 
 tion between those who incline to the popular part of the Consti- 
 tution and those who incline to the monarchial — exists to this hour, 
 and can cease only with the Constitution itself. The great lead- 
 ing idea which should be formed of our constitutional history, is 
 that there has always been a constant struggle between preroga- 
 tive and privilege. * * Now, such being the real picture of 
 our constitutional history, the student is, in the next place, to be 
 reminded of the natural divisions, not only of mankind, but of 
 philosophers, on political subjects and the manner in which they 
 separate into two classes. Those, for instance, who are anxious, 
 first and principally, for the prerogative of the Crown ; and those, 
 on the other hand, who are zealous, first and principally, for the 
 privileges of the people." — Smythe's Lect. on Mod. Hist., p. 87, 88. 
 Besides, to judge correctly whether they would probably change 
 the law in this respect, it should be considered what it then 
 was, as finely expressed in the Commentaries of Blackstone, 
 with which they were familiar. "Of great importance to the 
 public is the preservation of this personal liberty; for if once it 
 were left in the power of any, the highest magistrate, to imprison 
 arbitrarily whomsoever he pleased or his officers thought proper, 
 (as in France is daily practised by the Crown,) there would soon be 
 an end of all otltcr rights and immunities. Some have thought that 
 unjust attacks even upon life or property, at the arbitrary will of 
 the magistrate, are less dangerous to the Commonwealth, than 
 such as are made upon the personal liberty of the subject. To 
 bereave a man of life, or by violence to confiscate his estate with- 
 out accusation or trial, would be so gross and notorious an act of 
 despotism as must at once convey the alarm of tyranny throughout 
 the whole kingdom; but confinement of the person, by secretly 
 hurrying him to gaol, where his sufferings are unknown or forgot- 
 ten, is a less public, a less shocking, and therefore a more danger- 
 ous engine of arbitrary government. And yet, when the State is 
 in real danger, even this may be a necessary measure. But the 
 happiness of our Constitution is, that it is not left to the Execu- 
 tive power to determine whether the danger of the State is so 
 great as to render this measure expedient, [or the public safety 
 mug require it?~\ for it is the Parliament only, or the Legislative 
 power, that, whenever it sees proper, can authorize the Crown, by 
 
17 
 
 suspending the. Habeas Corpus Act for a short or limited time, to 
 imprison without giving any reason for so doing." — 1 Blk. Com., 
 p. 135. 
 
 It was highly probable that the people of the United States 
 would greatly limit this "Legislative power;" but if it were the 
 happiness of the English and the American Constitutions at that 
 time, that it was not left to the Executive to determine when the 
 danger of the State rendered the suspension expedient, is it 
 credible that this happy feature would be blotted out forever, and 
 the power given to the Executive to determine "when the public 
 safety may require" the suspension? 
 
 Whether they did that or not will now be considered. 
 
 Without the adoption of this clause the Federal Government 
 would or would not have had the power to suspend the privilege of 
 the Writ. Let it be assumed (what is not admitted, however) that 
 it would. It is clear nevertheless that the Judiciary could not have 
 had it, for even now their authority to issue that Writ is given, not 
 by the Constitution, but by the Legislature. Nor could the JPn si- 
 dent have had it, for his claim to that power is rested solely on the 
 existence of this section; (indeed, if the power has been given to 
 him under any other clause, it weakens, if it does not entirely 
 negative, the presumption that it is given to him by the 9th sec- 
 tion;) as, then, this power could not belong to the Judiciary, or to 
 the President, it follows that it would belong to the Legislature. 
 On the other hand, let it be assumed that it is this section which 
 gives that poiver to the Federal Government, yet the like reasoning 
 will show that it can only be exercised by the Legislature. Thus 
 as it was by concession a power which could only have been exer- 
 cised by the Parliament in England, or by the Legislatures of the 
 several States, those who now attribute it to the President must 
 show that that section contains three things — 
 
 1st. The grant of ike power. 2d. That those who granted it, 
 changed it from the Legislative department in which, under the 
 English and American Constitutions, it always had been, and but 
 for this specific change would have remained, to the President, or 
 Executive department of the Government; and 3d. That this power 
 to suspend, is a limited one. 
 B 
 
18 
 
 Now two of those things may be found in that section. 1st, the 
 grant of the power, and 2d, a limit to the power thus granted, but 
 that is all; the 3d is not declared, there is not in the whole instru- 
 ment the gleam of an intention to change the old, accustomed and 
 only organ of this power. It has been admitted that "the Consti- 
 tution does not expressly say by what department of the Govern- 
 ment this privilege is to be denied or deferred." But it is clear that 
 a grant of the poiver, with a limit to it does no more change and 
 make the President the organ which is to exercise it, than would 
 the mere admission that the power existed without the grant, make 
 him that organ. 
 
 Whether then the power to suspend existed without, or is given 
 by, that section, it does not change the organ which had theretofore 
 exercised it. But as a general power to suspend, whether as- 
 sumed to exist without, or given only by, that section, would have 
 enabled Congress to suspend that privilege at any time and for any 
 cause, or even without a cause; and as the people of the United 
 States "regarded that as a very exceptional fact, and wholly inad- 
 missable by them," they meant not to exclude congressional law, 
 as some would have it inferred, but to limit congressional power; 
 and that they did by prescribing the conditions on which alone 
 Congress should ever exercise the power. In other words, they 
 did not change the trusteeship of this, their privilege, but they did 
 very greatly limit the power of their trustees. 
 
 Those who argue for the President's suspending power, feel 
 themselves sorely pressed by the analogy of the English law, and 
 the better to get rid of it they insist that suspending the privilege 
 of the Writ, is not an English law expression; that the word sus- 
 pended, as applied to the privilege, is not a word of the common law, 
 or of any other system of laws in particular. That the phrase, 
 the privilege of the Writ of Habeas Corpus shall not be suspended, 
 was first introduced into the Constitution of the United /States, and 
 therefore, we should not look to English constitutional history 
 or law for the meaning of those words, or for an argument from 
 analogy. It would be quite as pertinent to tell us to study 
 Theology without the Bible, or American Literature without Chau- 
 cer, Shakespeare, or Milton, or our own language without an English 
 Dictionary, as to require us to study, or even understand that 
 
19 
 
 part of our own Constitution, without a knowledge of the privileges 
 
 of Englishmen, and of the great charters and statutes in which 
 they are recorded. 
 
 The American colonists always claimed to possess, and the Con- 
 tinental Congress of 1774 declared they were entitled to, all the 
 rights, liberties, and immunities of free and natural horn subjects 
 within the realm of England. — llurd. p. 105. 
 
 " The colonists," said Chatham, "are equally entitled with your- 
 selves to all the natural rights of mankind, and the peculiar privil- 
 eges of Englishmen." 
 
 The colonists were devoted to liberty, but it was to the principles 
 of English liberty. These principles were incorporated into their 
 minds, "from their extraction, their religion, the works they read, 
 and the form of their colonial governments" — ( Smythe's Lectures, 
 593,) the latter of which were modeled on that of England. In 1774, 
 Mr. Burke said of the colonies, " In no country in the world is the 
 law so general a study. * * No books save those of devotion are so 
 generally sent from England thither than on law. I hear they have 
 sold nearly as many of Blackstoue's Commentaries in America as 
 in England." In October, 1708, the Massachusetts Assembly 
 resolved, "That all the essential rights, liberties, privileges, and 
 immunities of the people of Great Britain had been fully confirmed 
 to them by Magna Charta, and by former and latter Acts of Parlia- 
 ment, and in a petition from the New York Convention to the 
 House of Commons, they said, "It is from and under the English 
 Constitution we derive all our civil and religious rights and liber- 
 ties." And Mr. Buike said, "English privileges have made Amer- 
 ica all that it is ; and English privileges, alone, will make it all it 
 can be." 
 
 Of a people, who risked a. revolution to secure for themselves 
 and their posterity the great principles of English liberty, we could 
 readily infer, what indeed we know, that they would be guided by 
 the same principles in organizing a government for themselves, and 
 it necessarily follows that they would use words and phrases like 
 those in which they had been accustomed to find these principles 
 recorded. It will be found, therefore, that those words in the Con- 
 stitution were Avell known to, and were used by, writers on the 
 Common Law and by statesmen; and that they were not singly or 
 
20 
 
 together first used in the Constitution of the United States. Be- 
 fore noticing the meaning and application given to them, and 
 the arguments based on both, by those who assign the suspending 
 power to the President — the following remarks are submitted : 
 
 Privilege. — In its legal and political acceptation in England and 
 in the American colonies, this word does not signify what it may have 
 originally meant, viz., a peculiar benefit or immunity which one 
 citizen enjoyed beyond that of other citizens ; but the word privilege 
 was in common use, to signify those civil and political rights claimed 
 by Englishmen as peculiar to them and not common to other na- 
 tions. In commenting on the words of the 29th chap, of Magna 
 Charta, 9 Hen. 3. " Nullus liber homo capiatur, vel imprisonetur, 
 aut dissaisietur cle aliquo libero tenemento suo, vel libertatibus vel 
 liberis consuetudinibus, &c. — Professor Sullivan says, " The word 
 k libertatibus 1 comprehends, — 1. The Laivs of the realm that every 
 man should freely enjoy such advantages and privileges as those 
 aws give him. — 2. It signifies the privileges that some of the 
 subjects, whether single persons or bodies corporate, have above 
 others, by the lawful grant of the King. — Lee. 41, p. 372. 
 
 In the act of 31 Charles I. chap. 10, sec. 2, which abolished 
 the court of Star Chamber, it is declared that the council table 
 "had lately ventured to determine of the liberty of the subject 
 contrary to the laws of the land, and the rights and privileges of the 
 people." 
 
 In the Parliament that assembled in 1640, Waller denounced 
 certain divines as manifestly in the wrong in that which concerns 
 the liberties and privileges of the subjects of England. 
 
 In the speech made by George I. on the introduction of the 
 Peerage Bill by the Ministers, he said, " As the civil rights and 
 privileges of my subjects claim my concern," &c, and in his speech 
 dissolving Parliament, in 1734, he said, "The happiness of my 
 people depends upon my preserving to them all their legal rights 
 and privileges, as established under the present settlement of the 
 crown," &c. 
 
 In a remonstrance drawn by Otis, in 1761, for the Massachusetts 
 Assembly, an act of the Governor and Council was denounced as 
 " an invasion of the most darling privilege, the right of originating 
 all taxes." — 4 Grab., 87. 
 
21 
 
 In 1745, Virginia resolved that the most substantial and distin- 
 guished part of their political birth-right was the privilege of being 
 taxed exclusively by themselves, and that they had always exercised 
 this privilege. — 4 Grah., 203. 
 
 The Convention of the Colonies, which met in New York in 
 1765, voted that the most essential of their liberties were the pri- 
 vileges of taxing themselves and of trial by jury. — 4 Gra., ^17. 
 These and the like words, in almost every page of English and 
 American history, show the sense in which the word privilege was 
 used. But the framers of the Constitution used the same word in 
 article 4, section 2, of the Constitution. " The citizens of each 
 State shall be entitled to all privileges and immunities of citizens 
 in the several States;" and it is fortunate that these words, and 
 the word 'privilege used in the Habeas < 'orpus clause, have been 
 explained by a Judge, of the tone or ring of whose opinion no one 
 can complain. 
 
 In the case of Corfield v. Coryell, 4 Wash. C. C. Rep. 380, Judge 
 Washington said, "The inquiry is, what are the privileges and 
 immunities of citizens of the several States? We feel no hesita- 
 tion in confining these expressions to those privileges and immuni- 
 ties which are in their nature fundamental; which belong of rigid 
 to the citizens of all free Governments. * * They may all be 
 comprehended under the following general heads: The enjoyment 
 of life and liberty, and to pursue and obtain happiness and safety ; 
 subject, nevertheless, to such restraints as the Government may 
 justly prescribe for the general good of the whole. The right of 
 a citizen of one State to pass through, or to reside in any other 
 State, for purposes of trade, &c, to claim the benefit of the Writ 
 of Habeas Corpus, &c 3 may be mentioned as some of the particu- 
 lar privileges and immunities of citizens, which are clearly em- 
 braced by the general description ^..privileges, which are deemed to 
 be fundamental, to which may be added the elective franchise," &c. 
 
 This, then, is the meaning of the word privilege and the sense 
 in which it is to be read in the Habeas Corpus clause, viz: "The 
 right to claim the benefit of the Writ of Huh,, is Corpus shall not 
 be suspended" &c. The privilege of a thing then means the right 
 to a thing; and the privilege of the Writ of Habeas Corpus, 
 means the right to the Writ of Habeas Corpus, just as the phrase, 
 
22 
 
 the privilege of trial by jury, means the right to trial by jury. The 
 idea of the former is, too, quite as old as the latter. Nor is the 
 phrase itself, viz: "The privilege of the Writ of Habeas Corpus," 
 a new one. It was known and used in England nearly one hundred 
 years before our Constitution was made. In 1692, the Province 
 of Massachusetts was organized under a new charter, under which 
 the General Court passed certain laws, one of them claiming the 
 benefit of the Writ of Habeas Corpus was rejected (by the King) 
 on the ground that " the privilege had not yet been granted to the 
 plantations." — 1 Barry's Hist. Mass. This colonial act adopted, it 
 is said, the Habeas Corpus Act of 31, Charles II., and it was disal- 
 lowed in 1695.— Hurd on Hab. Corp., p. 111. But "the right 
 to the Writ, was, before that time claimed as One of the existing 
 yftivileges of the Colonists in Massachusetts," Hurd, p. 110, and 
 in a book, the second edition of which was published in England 
 in the year 1767, named like, and based upon Henry Care's Bri- 
 tish Liberties, it is said : — 
 
 "Many gentlemen that refused (to grant supplies to Charles the 
 First) were imprisoned or sent abroad by the King and his privy 
 council, and the Judges refused, to several that applied for it, the 
 privil'i/e <>f the Writ of Habeas Corpus, to which they were enti- 
 tled by the ancient common law of the realm." That, be it 
 observed, was before the Petition of Bight or the passage of the 
 Habeas Corpus Act. 
 
 Nol only then was it known that the word privilege signified the 
 right to the Writ of Habeas Corpus, as it did to the trial by jury, 
 and other rights of the people of England, but the phrase, "the 
 i'i;i\ [LEGE of the Writ of Habeas Corpus," appears to have been 
 well known to and used in the Colonies and in England, at least as 
 early as 1692; and, it may be here stated, that the whole clause 
 now in the Constitution of the United States, including the word 
 suspended, as applied to the privilege, was borrowed from the 
 Constitution of Massachusetts, in which it had been used ten 
 years before; and not only that, but the privilege had actually 
 Kern suspended by the Legislature of Massachusetts a year before 
 the Constitution of the United States was adopted. 
 
 In September, 17~s, a State Convention was called in Massa- 
 chusetts. They framed a Constitution, which, having been approved 
 
23 
 
 by the people, the Convention adopted in June, 1780. The city 
 of Boston agreed to it, "but with proposed alterations, one of 
 
 them respecting the privilege of the Writ of Habeas Corpus; with 
 regard to this, they wished that the privilege should be more accu- 
 rately defined and more liberally granted, so that citizens should 
 not be subject to confinement fox suspicion." — Barry's Hist. Mass., 
 vol. 3, p. 177-8. The article itself is in the following words: — 
 "Chap. 9, Art. 7. The privilege and benefit of the Writ of Ha- 
 beas Corpus shall be enjoyed in this Commonwealth in the most 
 free, easy, cheap, expeditious, and ample manner: and shall not 
 be suspended by the Legislature except upon the most urgent and 
 pressing occasion, and for a limited time, not exceeding twelve 
 months." A reference to the Habeas Corpus clause offered by 
 Mr. Pinckney, on August 20th, and hereinbefore copied, will 
 show that it was taken, word fur word, (except, indeed, the "free, 
 easy, and cheap," words,) from the Constitution of Massachusetts; 
 and the whole argument based on the want of analogy between the 
 English Constitution and our own, is now cut up, root and branch, 
 by, not the analogy, but the identity between this legislative sus- 
 pending clause of Massachusetts and that in the Constitution of 
 the United States. If it was not a loose, it was surely then an 
 "inaccurate expression," to say that those words "were first intro- 
 duced into the Constitution of the United States." 
 
 The occasion of the suspension was Shay's Rebellion — after 
 which, viz: (on Nov. 10, 1786,) the privilege of the writ was sus- 
 pended for eight months. — Barry's Hist. vol. 3, p. 235. 
 
 It is not then correct to say that the expression "suspending the 
 privilege" was first introduced into the Constitution of the United 
 States. Nor, indeed, was the thing itself, or the like expressions 
 unknown here or in England. 
 
 To suspend signifies to withhold, "to debar" for a time, from the 
 execution of an office or the enjoyment of a revenue or of any 
 privilege. — Worcester. To debar from any privilege, to cause to 
 cease for a time from operation or effect, as to suspend the Habeas 
 Corpus Act. Suspended, prevented from enjoying a light. — Web- 
 ster. That the privilege of the Writ of Habeas Corpus shall not 
 be suspended, means then, that the right to the Writ shall not 
 cease for a time, unless, &c, 
 
 _. / • ' 
 
24 
 
 1. It is very obvious, therefore, why the word privilege was made 
 the subject of the predicate suspended. 
 
 In relation to the Government of the United States, there was 
 no Habeas Corpus Act ; for while the Writ was, the Habeas Corpus 
 Acts were not, the same in the several States; nor could it be known 
 whether Congress would ever pass such an Act, (which, indeed, they 
 have not yet passed ;) consequently there was no Act, present or 
 future, to be suspended. 
 
 2. Nor, had they suspended the Act of 31 Chas. II., or any other 
 act, would that have effected their object; because as the Common 
 Law privilege of, or right to, the Writ was not given by an Act, the 
 suspension or even the repeal of the Act would have left the privil- 
 ege or right unaffected. — See Hur. Hab. Cor., p. 133. 
 
 3. It would not have been logical to have said that the Writ 
 should not be suspended, because that would have been to sus- 
 pend a remedy while leaving the privilege of, or right to, the Writ 
 untouched, and it would possibly have left the privilege, or right 
 itself, open to be suspended at any time ; for it might have been 
 contended that the suspending power was only prohibited from 
 suspending the Writ, but was not prohibited from suspending the 
 privilege or right itself before invasion or rebellion ; it follows, 
 therefore, that the Convention was logically obliged to say that 
 the privilege should not be suspended : thus forever guarding 
 the right itself, save only in the cases mentioned in the clause. 
 Nor could any word but suspended have been used. For the right 
 to the writ being an original and inherent right — it could only 
 have been suspended; it could not have been taken away entirely. 
 Nor was the suspending a privilege or right a novelty in Eng- 
 lish law. The suspending power had long been a subject of legal 
 and parliamentary discussion in England. The power itself, or 
 the expediency of exercising it, had never been denied to parlia- 
 ment, but when it was claimed and exercised for and by the King, 
 as the like power is now claimed for the President, the people by 
 the Declaration and Bill of Rights declared and ordained that by 
 the I lommon Law it never had and that it never should be exercised 
 by their Executive, but by their Legislature only. 
 
 In speaking on Fox's East India Bill, Mr. Burke said, " The 
 rights <>f men, that is to say the natural rights of mankind, are, 
 
25 
 
 indeed, sacred things. If these natural rights are further secured 
 against power and authority by -written instruments and positive en- 
 gagements, they are in a little better condition. Indeed, this formal 
 recognition by the sovereign power, of an original right in the 
 subject, can never be subverted but by rooting up the radical prin- 
 ciples of government, and even of society itself. The charters 
 which we call by distinction Great are public instruments of this 
 nature, I mean the charters of King John and King Henry III., 
 and the rights secured by these instruments may, without any 
 deceitful ambiguity, be very fairly called the Chartered Rights of 
 Men. 
 
 " But, sir, the East India Charter is a charter to establish mo- 
 nopoly, and to create power." " These chartered rights (viz., of the 
 East India Company) do at least suspend the natural rights of 
 mankind at large, and in their very frame and constitution are 
 liable to fall into a direct violation of them." The privilege of the 
 writ of Habeas Corpus is one of the natural privileges secured to men 
 by the Great Charters. Mr. Burke included it among the others, 
 so that to speak of suspending that privilege was not then a no- 
 velty to the lawyers or statesmen of England. And why should it 
 have been one to the lawyers and statesmen of the United States ? 
 In fact they well knew, and had before complained of the suspen- 
 sion of a like privilege. 
 
 The right of the people to legislate for themselves being a natural 
 right, and by law as much a privilege as any other belonging to 
 Englishmen, the King, in Parliament, was justly complained of 
 {or suspending our own legislatures, "and also for suspending the 
 operation of laws." It has been asserted " that the Habeas Corpus 
 Act of 31 Charles II. has never been suspended for a moment ;" and 
 that the English Imprisonment Acts used no such tcords as to the 
 English Habeas Corpus Statute or Writ, and hence it is left to be 
 inferred that the use of the word suspended in the Constitution 
 was unknown to the English law. (That argument would not have 
 been used as a make-weight had it not been for the impression of the 
 writer that the expression had been first used in the Constitution 
 of the United States ; that has been shown to be incorrect, but still 
 the assertion may be noticed, as it involves an argument against, 
 and not for, the President's power.) It may be literally true that 
 
26 
 
 the ] [abeaa Corpus Act has never been suspended. Lord Brougham 
 had before made the same remark. — Pol. Philos., vol. 3. But, 
 in the sense in which Blackstone and other legal writers used 
 the expression, it is either true, or it is clear that during more 
 than a century the privilege of the writ of Habeas Corpus has been 
 from time to time suspended even in England. The dilemma is 
 unavoidable. 
 
 Blackstone's Commentaries were first published in 1765-8. 
 But in the book before mentioned, entitled "English Liberties," 
 &c, and written before that, it is said: "If the Legislature leaves 
 the Executive power in possession of a right to imprison those sub- 
 jects, who can give security for their good behaviour — there is an 
 end of liberty: unless they are taken up in order to answer, with- 
 out delay, for a capital crime ; in which case they are really free. 
 The Habeas Corpus Act was intended to render the subject safe in 
 this particular. Why a suspension of it hath ever been permitted, 
 politicians best can answer. * * James II., when Monmouth 
 was in actual rebellion against him, did not demand it. * * 
 Montesquieu knew an English Parliament had more than once per- 
 mitted a temporary suspension of the Habeas Corpus Act." — 
 Introduction, pp. 21-22. 
 
 " This Act (31 Charles II.) has been at various times suspended, 
 with respect to the power of imprisonment vested in the Crown, 
 upon occasions of public alarm; such suspension usually being for 
 a very short period. The general title given to such temporary 
 acts lias been, 'An Act to empower his Majesty to secure and detain 
 such persons as his Majesty shall suspect are conspiring against 
 his person and Government. The following are acts of that de- 
 scription: 1 W. & M., St. 1, ch. 7, ID; 7 and 8 W., 3, ch. 11; 6 
 Anne, ch. 15; 7 Anne, ch. 9; 1 Geo. I., ch. 8, 30; 17 Geo. II., ch. 
 6; 19 Geo. II., ch. 1; 17 Geo. III., ch. 9; 34 Geo. III., ch. 54, (May 
 23, L794,) followed by several acts during the war then exist- 
 ing." — Evans' Note: cited in Chitty's Statutes, vol. 1, p. 344. 
 
 The 17 Geo. III., ch. 9, was an Act introduced in 1777 to enable 
 the King, "any law or statute to the contrary notwithstanding," to 
 detain in prison all who were charged with, or suspected of, com- 
 mitting treason in America or on the high seas, or of being guilty 
 of what the Government denominated piracy. "This was another of 
 
27 
 
 those unhappy measures which it had bo long been the policy of the 
 King and his Ministers to recommend, and which sought to make war 
 in the Colonies, not so much by the thunder of artillery, as by the 
 brutum fulmen of Parliament." "It was a practical suspension of 
 the Haifa* Corpus: Act. It called men pirates, who, at the blackest 
 could only he looked upon" as rebels, and thus, by a strained inter- 
 pretation of the common law, sought to debase morally, the crimi- 
 nality of acts for which the legal penalty remained the same." The 
 Marquis of Rockingham, Fox, Dunning, and their friends all de- 
 nounced it as a suspension of the Habeas Corpus Act. — Mc- 
 Knight's Life of Burke, vol. 2, p. 163-104. The Act of 34 
 George III., chap. 54, was avowed by the Minister. Pitt, to be a 
 partial suspension of the Habeas Corpus Act; and as such it was 
 defended by Adair and denounced by Fox and Sheridan. — Annals 
 of Great Britain, vol. 3, p. 22 and 24. "In 1817 the measures 
 proposed by the Minister, (and which passed.) were the temporary 
 suspension of the Habeas Corpus Act." — Bissett's England, vol. 
 3, p. -'ill. "An Act was passed for the continuing until the 1st 
 of March, 1818, the suspension of the Habeas Corpus Act." — Bis- 
 sett, vol. 3, p. 341. 
 
 " The salutary effects of the suspension of the Habeas Corpus 
 Act in the year 1817." — Allison's Europe, vol. 1, chap. 4, p. 23. 
 It was suspended in Ireland in 1S22. — 1 Allison, chap. 10, p. 123. 
 and again in 1848. — 4 Allison, chap. 43, p. 138. Chap. 56, p. 52. 
 And Allison, be it remembered, is a lawyer as well as a historian. 
 John Stuart Mill, in Frazer's Magazine for February, L862, speaks 
 of England having u suspended the Habeas Corpus Act." 
 
 In 8 Mod. Hep., p. 90, there are reported the cases of the King 
 vs. the Earl of Orrery, and five others, who, being committed by 
 the Secretary of State for high treason, moved for leave to enter 
 their prayer under the Habeas Corpus Act of 31 Car. 2. The re- 
 port says : "This (Habeas Corpus) Act was now by another act 
 of George I., chap. 1, sec. 1, suspended for a time." Neither the 
 counsel for the prisoner nor for the King questioned but that the 
 Act had been suspended. They both used the word suspended, and 
 Ailsbury's case was cited. 
 
 The case of Lord Ailsbury there referred to is that of Bex 
 vs. the Earl of Ailsbury. — Comberbach's ltep. 421, and reported 
 
28 
 
 also id Cases Tempore Holt, p. 84— In Hil. Term., 9, William III. 
 Lord Ailsbury prayed to be bailed, having entered his prayer the 
 first week of this term. lie was committed in March last, but (the 
 report proceeds) "the Habeas Corpus Act was suspended, by a 
 late statute, till September, and by a later statute until December, 
 so that he could not come sooner to enter his prayer, and per Cur., 
 Holt, Ch. J., " when the power of the Court was taken away from 
 bailing, if he doth not make his prayer the first term, when the 
 law is open, he cannot do it afterwards upon the Habeas Corpus 
 Act ; but when the Act is suspended it must be understood that he 
 must do it the first term after the suspension. And so we held 
 upon the former Act of suspension." 
 
 It may be that from the time of Lord Chief Justice Holt, to John 
 Stuart Mill, in 18(32, Chief Justices, Judges, lawyers, and writers 
 upon law, statesmen, and historians, have spoken loosely on this 
 point. But what did they mean — and suppose they would be under- 
 stood by others to mean ? During the existence of those suspending 
 acts, it is true that some people were entitled to the privilege of 
 the Habeas Corpus Act ; therefore, as to them, the Act was not 
 suspended, and so, to speak literally, the Act, as a whole, and as 
 applying to all persons, was not suspended. But as the Habeas 
 Corpus Act might be suspended, as readily as repealed, as to all 
 persons, wli}', then, could it not be suspended as to some of them? 
 There is no technical impossibility in such a suspension, and it was 
 just that suspension, and that only, Avhich Blackstone, and all 
 who have so termed it, meant. One citation will show that. 
 
 "In cases of conspiracy or meditated treason against the King, it 
 i- not unusual to vest a power in the King of apprehending and 
 detaining suspected persons, without bail or main prize, which, as 
 to thrm. operates as a suspension of the Habeas Corpus Act." — 
 Jacob's Law, Diet. Title Government. And that, too, was Mr. 
 Madison's opinion as to the suspension of the privilege under our 
 Constitution. — Rep. on Virg. Res. 
 
 But either the Act has been suspended, or the privilege has been 
 suspended. The dilemma is unavoidable. Thus the suspending acts 
 must have done one of four things, as it respected the persons to 
 whom it was meant to apply them, viz: 1. To repeal the Habeas 
 Corpus Act; or, 2d, to suspend the Act; or, 3d, to suspend the 
 
29 
 
 Writ; or, 4th, to suspend the privilege of, or right to, the Writ or 
 Act. Those who say that they did not even suspend the Act, can- 
 not say that they repealed it as to any hotly ; nor, as they insist, 
 did they suspend it; and, for a still stronger reason, they did 
 not suspend the Writ; it follows, therefore, that it must have been 
 the privilege itself which they suspended. No matter that the acts 
 did not use the word privilege; they did in legal intendment and 
 effect declare, that certain persons should not, for a limited time, 
 have a right to apply for the Writ of Habeas Corpus, and when 
 the Courts refused them the Writ, they did Such persons no wrong; 
 for that there cannot be any wrong, denial, or delay, when there is 
 no right, is a maxim both of the civil and common law. 
 
 What has thus been said, may now be applied in answer to the 
 main positions in favor of the President's suspending power; and 
 the first is, that the privilege mentioned in the clause is the pri- 
 vilege of an imprisoned or detained person, of being bailed, &c, 
 &c. That " the warrant of arrest with the order that the party's 
 privilege be denied for a season, is suspension." That "the 
 power to imprison and to deny or delay a discharge from im- 
 prisonment, is an Executive power ; therefore the suspension 
 is an Executive power. Is it, however, true that there is no pri- 
 vilege in the Constitutional sense of the word, before a person 
 has been arrested? When, in 1692, the people of Massachusetts 
 passed a Habeas Corpus Act, and the King refused to approve it, 
 because, as he said, "the privilege Jiad not been granted to the 
 plantations," did he mean to say that that privilege did not exist 
 because they had not all been arrested? If the status of im- 
 prisonment be essential to the existence of the privilege of the 
 Writ, it was very fortunate for the people of Massachusetts that 
 the King had not granted to them that privilege. When the 
 people of England have, from age to age, clamored for their privi- 
 leges, and that they should be secured to them by charter upon 
 charter, did they ever suppose that their own imprisonment was an 
 element, and an essential one, of their chartered privileges ? Have 
 not the people the privilege of trial by jury without being in Court 
 as parties, plaintiff, or defendant? Surely, the privilege of, or 
 right to, a thing, is essentially different from the enjoyment of that 
 right. That a man cannot exercise his privilege of, or right to 
 
30 
 
 demand, the Writ of Habeas Corpus, till he lias been imprisoned, 
 is true: but the imprisonment is not the privilege, or any element 
 of it, it but gives occasion for the exercise of it. The privilege 
 does not then "subsist in remedy." But it is further objected, 
 that "it is impossible to suppose that, in speaking of suspending 
 the privilege of the Writ, it (the Constitution) meant by one act 
 of law, as if it had spoken of the Writ alone, or of the Habeas 
 Corpus Act." That sentence was penned by a gentleman who 
 then overlooked the fact, that the Constitution of Massachu- 
 setts, made seven years before that of the United States, contained 
 precisely the same clause. That it did mean just what that writer 
 says it was impossible it could mean, viz: that the privilege 
 should be suspended by one act of law ; and he overlooked the 
 further fact, that instead of it being impossible to suspend the 
 privilege by one act of law, that impossibility had actually been 
 performed by the Legislature of Massachusetts one year before 
 the Constitution of the United States was made ; and that that im- 
 possible act, was well known to every member of the Federal 
 Convention. 
 
 Besides, to affirm that the power to deny the privilege is an 
 Executive power begs the question ; and that it is not an Executive 
 function is thus proved. If the Constitution had declared that " the 
 privilege of the Writ of Habeas Corpus may be suspended at any 
 time" the power must have been exercised by the same department 
 which ought now to exercise it; for the present limitation of time 
 does but limit the power without changing the organ of that power. 
 But that absolute power to suspend the privilege would have been 
 but a parliamentary power, and the case would then have been 
 analogous to, and even identical with, parliamentary law ; and as 
 such a power had always been in the Legislature of England, and 
 in the Legislatures of the respective States andmtfin their respective 
 Executives, so it would have belonged to the Legislature of the 
 United States, and not to their Executive by virtue of his office. 
 Now the words in the existing clause only require the same organ 
 t'i limit its power to specified occasions, instead of exercising it on 
 any occasion ; so that the limited power remains with the organ of 
 the greater power, viz., with the Legislature; therefore the power 
 to deny the privilege does not belong to the Executive by virtue 
 
31 
 
 of his office. Again, an arrest (according to law) is an Executive 
 act, and generally docs, and always can happen without an order 
 to suspend the privilege of the party arrested; if then, by the one 
 act of the Executive the party has been arrested, but without an 
 order denying his privilege, the latter has not been suspended ; but 
 can it not afterwards (and during his detention) be suspended? 
 To deny that would be absurd : but that subsequent act of denial 
 cannot be the act of arrest or any part of it, hence the order of 
 denial alone must be the act of suspension, •which, therefore, is not 
 the warrant of arrest with the order, &c. ; and as the act which thus 
 suspends the privilege has no connection -with the act of arrest, it 
 is not essential that it should proceed from the same actor, and as 
 "a single order (of the legislature,) founded on the authority of the 
 Constitution," would be as effective a suspension as a single order 
 (of the President,) founded on the same authority, therefore, an 
 act of the Legislature, viz., a lecjialative order, "is all that is neces- 
 sary to suspend the privilege," and consequently, it "is suspension 
 under the ( Constitution" 
 
 III. It has been insisted also, — 1, That " 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 prnblic safety in the times of either," and 
 2, That the power to suspend the privilege of the Writ " is insepa- 
 rably connected with rebellion or invasion." 
 
 " It is the duty of the office, in both its civil and military aspects, 
 to suppress insurrections and repel invasions." " That no legisla- 
 tive act is necessary or proper to give cognizance of these facts 
 to the Executive department;" that, unlike Parliament, which is the 
 highest power in England and gives the authority, our Constitution 
 is higher than Congress, and "is itself the authority, and all that 
 remains is to execute it." The answers to these are — 1, one, 
 and the most essential, of the conditions, viz., ("when the public 
 safety may require it,") is not of Executive,, but is of Legislative 
 cognizance. — 2, that to suspend the right of a citizen i< Dot the 
 duty of the Executive in its civil or its military aspect. 
 
 "When, in 1777, a bill was introduced into the English Parliament 
 to suspend the privilege of the Writ of Habeas Corpus as to 
 Americans engaged, or suspected of being engaged, in the rebellion. 
 
Mr. Fox and his friends opposed the bill, and " they succeeded in 
 modifying some of its most arbitrary features." — McKnight's Life 
 of Burke ; vol. 2, p. 164. Is it of less consequence to American 
 citizens, that they should have the like protection ? Or that their 
 immediate representatives shall have the right to judge whether 
 the public safety does actually require the suspension of their 
 privilege ? or at least to modify the proceeding as was done in 
 England ? 
 
 Rebellion and invasion are great physical facts, which all can 
 see, and about which there can be but one judgment. These the 
 Executive may readily know, but the Constitution does not au- 
 thorize the privilege of the Habeas Corpus to be suspended upon 
 either rebellion or invasion. Granting that they exist, neverthe- 
 less the Constitution expressly declares that " The privilege shall 
 not be suspended unless when the public safety may require it." 
 Is it true, then, that no Legislative act is necessary or proper to give 
 cognizance of that fact to the Executive ? There is not, among 
 the innumerable subjects of Legislative cognizance, one so essentially 
 of that class as the requirement of public safety. What it may or 
 may not require depends on expediency and sound public policy ; 
 and the requirement itself is essentially the judgment which the 
 competent authority shall pronounce on the field of events, which 
 does in their judgment influence the safety of the public. Let there 
 be rebellion or invasion, but what new rules of conduct shall be 
 prescribed on their account ? If new laws be required, Congress 
 alone can make them. If property is to be taken, Congress alone 
 can take it. Shall then the privilege of privileges — shall liberty itself 
 be subjected to a department, incapable of making any law, or of 
 prescribing a rule of conduct for anybody? Laws are but means 
 to guard the liberty of the citizen, and to the Legislature alone 
 have the people intrusted the power of making and modifying 
 the laws ; have they then given to the Executive power to take 
 a\v;tv liberty itself? — the very end for which the law was made. 
 
 Granted that the public safety may require its suspension, shall 
 the President only, or shall Congress, say how long that safety re- 
 quires it, and when it shall cease? or which of them shall say in 
 wlmt places, or upon what persons, or on what conditions only, the 
 suspension shall operate ? if it shall be notorious that warrants of 
 
33 
 
 arrest have been left in blank, -with power in corrupt and arbi- 
 trary Secretaries to fill them up. as they shall find a victim, shall 
 the President be permitted to depute that discretionary power to 
 such officers, to be exercised when, where, and upon whom they 
 shall think fit? It may be replied that this might follow even if 
 the Legislature had suspended the privilege, for then the imprison- 
 ment w r ould still be the sole act of the President. But the answers 
 are : 1. Power held under the will of another is never so much 
 abused, and can never be so dangerous as when it is not so hold : 
 hence, the President and his dependents would be less likely to abuse 
 it when held by the sufferance of Congress only, than if it were 
 held under the Constitution, and above Congress. 2. A power 
 given by Congress could be given upon terms, in case of abuse they 
 could require an account of it, its rightful possessors could call the 
 public attention to its abuse, it would, in short, have every check 
 and safeguard which are possible to be given to it; but if the Con- 
 stitution has given the power to the Executive, the Congress can- 
 not require an account of its use, or take it away in case of its 
 abuse. They themselves may be among its victims. 
 
 But does it belong to his office in its civil aspect? Hamilton 
 lias said that " the essence of legislative authority is to enact laws, 
 or in other words, to prescribe rules for the regulation of the so- 
 ciety ; while the execution of the laws, and the employment of the 
 common strength, either for this purpose, or for the common de- 
 fense, seems to comprise all the functions of the Executive Magis- 
 trate. — ''Fed. Xo. "•">. And Mr. Madison said : — Report on Virg. 
 Res. — " It has become an axiom in the science of government, that 
 a separation of the legislative and executive departments, is neces- 
 sary to the preservation of public liberty. Nowhere has this axiom 
 been better understood in theory, or more carefully pursued in 
 practice, than in the United States." 
 
 The duty, then, of the Executive office is to take care that the laws 
 shall be executed, and that presupposes the existence of the laws 
 to be executed. But those laws bind the President as well as any 
 private citizen; they say to him — The law allows, nay, enjoins upon 
 you, to arrest whosoever shall violate the law, but it next enjoins 
 the Judo-e to hear that accusation, and to decide between the Exe- 
 cutive and the accused, and to bail, remand, or try him accord- 
 
34 
 
 ing to law : so that if, by the laws of the land, he has deserved 
 to be punished, "then by the same laws also he may, and by no 
 Other he ought, to be judged, and acquitted, or condemned." If 
 then " the warrant of arrest, with the order that the party's privi- 
 lege be denied for a season, is suspension," what is that order but 
 a latOj and the power to make it, but power to make a law ? The 
 law bad given the privilege, this order takes it away ; the law had 
 said the prisoner ought to be heard, and bailed, released, or tried 
 by a Judge ; this order prohibits the Judge from bailing, or releas- 
 er trying ; even the prisoner himself need not be informed of 
 the accusation against him. What is this but to make a law abro- 
 gating, for a season, all laws, which, from Magna Charta to the 
 Constitution, have solemnly declared that "no freeman shall be 
 taken, or imprisoned, or passed upon but by the law of the land " 
 — that is by judicial proceedings ? The President considers, in his 
 own mind, what the public safety requires, and, thereupon, he 
 legislates — he wills the law for each prisoner. In the language 
 of Mr. Jefferson, he is " himself the accuser, counsel, judge and 
 jury : whose suspicion maybe the evidence, his order the sentence, 
 'lieer the jailor, and his breast the sole record of the trans- 
 action." It is incredible that such is the duty of the office in its 
 civil aspect. 
 
 ;> >. Is it so in its military aspect ? " Congress (not the President) 
 shall have power to declare war, raise and support armies, to pro- 
 vide for calling forth the militia to execute the laws of the Union, 
 suppress insurrection, and repel invasion." — Const. Art 1, sec. 8. 
 
 Be i; remembered that this power is claimed to have been given 
 to the President alone. If that, or any other power within the 
 Constitutional grant be necessary in case of rebellion or invasion, 
 gress will judge of the requirements of the public safety, and 
 upon their own motion, or on demand of the Executive, may give 
 him tin- power of the whole government. The Legislature is here, 
 and in all free governments, the organ of the national will. The 
 I lutive but enforces that will. He upholds and enforces the 
 rights of the people, lie cannot suspend or take their rights away. 
 If the law has been violated, then by, and according to, the same 
 law, he takes care that the violators are arrested; there his duty 
 : r the Judges alone, who are equal in authority with him- 
 
35 
 
 self, can pass upon or judge the alleged violator of it ; but if the 
 I 'resident himself passes upon him, or withholds him from their 
 judgment, he then becomes the violator of the law, he usurps the 
 functions of the Judiciary, and he is not in the performance of his 
 office. 
 
 This becomes evident from a view of the whole spirit, and even 
 the letter, of the Federal, and the several State Constitutions. 
 
 To suspend the privilege of the Writ of Habeas Corpus, is to 
 suspend the laws and the execution of the laws ; and as that power 
 is by express words in some, and by the fair intendment and effect 
 of all the State Constitutions, prohibited to the Executive, and when 
 suffered at all, is confined to the Legislature, both by the Constitu- 
 tions made before as well as since that of the United States, it is the 
 highest evidence, that the same people did not mean to give, and 
 that in their opinion they did not give, that power to the Federal Ex- 
 ecutive, but limited it to the Legislature. 1. It suspends the laws, it 
 suspends the right itself. It suspends every law from and since 
 Magna Charta, which secures the right. Itsuspends theBill of Rights 
 in every State which has such a bill, and few are without one. It 
 suspends that part of the Constitution of every State made before as 
 well as since the Federal Constitution, which ordains, and they all 
 ordain, that the privilege of the Writ of Habeas Corpus shall not 
 be suspended, save by the Legislature. 
 
 By section 12 of the Bill of Rights in the Constitution of Penn- 
 sylvania, it is ordained that " No power of suspending law shall be 
 exercised, unless by the Legislature or its authority." The like 
 provision, with the addition, generally, that the execution of the 
 laws shall not be suspended, was ordained before the adoption of 
 the Constitution of the United States, in the Bills of Rights or Con- 
 stitutions of Massachusetts, New York, Virginia, North Carolina, 
 Maryland ; and since that time in the Bills of Rights or Consti- 
 tution of New Hampshire, Vermont, Connecticut, New Jersey, 
 Georgia, Kentucky, Rhode Island, Tennessee, Ohio, Indiana, Mis- 
 sissippi, Maine, and Alabama, and it may be in others ; and in not 
 a single instance is that power given, even by implication, to the 
 Executive. 
 
 But it suspends the execution of the laws ; a thing as much for- 
 bidden by the intent, and as often by the words of those Bills of 
 
36 
 
 Kights and Constitutions, as that of suspending the laws themselves. 
 The power which suspends the privilege, does in effect suspend the 
 execution of every law which enjoins judges to issue, and officers to 
 execute, the Writ of Habeas Corpus. From the moment that the 
 executive fiat goes forth, the arm of the Judiciary is arrested, and 
 those laws can no longer be executed. 
 
 In still further evidence that the power of suspension was not 
 meant to be taken from the Legislature and given to the Presi- 
 dent, it appears that in every State Constitution in which the 
 Habeas Corpus is mentioned, (and it is mentioned in perhaps every 
 one of them, in terms like, or identical with, that of the United 
 States,) the power is conferred only upon the Legislature ; in no 
 instance is it given to the Executive; and in the amended Consti- 
 tution of Virginia it is taken from both. 
 
 In the Federal Convention, on June 4th, Mr. Gerry moved that 
 " the National Executive shall have a right to negative any legis- 
 lative act -which shall not be afterwards passed, unless by parts 
 
 of each branch," &c. It was moved to amend so as to read, 
 •• Resolved that the National Executive have a power to suspend 
 any legislative act for ," and the amendment was unani- 
 mously negatived. That was the only attempt ever made in the 
 IVdcral Convention to give to the Executive a suspending power. 
 
 The position of the Clause. — It has been said that "the present 
 position of the clause in the Constitution is not of the least conse- 
 quence ; according to the Journal of the Convention, the clause 
 was offered as an amendment to the fourth section of the article on 
 the Judiciary. If position in a section of an article carries power 
 to the article, then the original motion as adopted carried power 
 to the Judiciary, and must have regarded suspension of the privi- 
 lege as a judicial act, and not as dependant on a legislative act." 
 It is submitted that that is a noyisequitur. 
 
 1. A reference to the history hereinbefore given of the Judiciary 
 clause which is now clause 8, Sec. II., Art. III. ; will show that it 
 limited the <place where trials in criminal cases should be had to 
 the State in which they should be committed — that was a limitation 
 upon the power of Congress, without which they might have enacted 
 that tin: trial should be elsewhere; and the latter sentence of the 
 section, viz., "as to crimes not committed within any State, the trial 
 
37 
 
 shall be at such place or places as Congress may by law have di- 
 rected,'' is also restrictive, because it prohibits a trial at any place 
 other than where Congress shall have directed, viz., before the 
 commission of the specific offence; so that the Avholc subject of the 
 section was a restriction upon the power of Congress, and when Mr. 
 Morris offered the Habeas Corpus clause as an amendment to it, 
 it shows, when read in connection with it, that it also, was (for 
 greater caution) a limitation upon the power of Congress. 
 
 It has been further objected: "In opposition to an intention to 
 leave the power to Congress, observe the striking departure from 
 parallel of the second clause of Section 9, Article I., from the flrtt 
 clause of the same section : 
 
 "First Clause. — 'The migration or importation of such persons, 
 &c, shall not be prohibited by Congress before the year 1808, but a 
 tax or duty (expressly within the power of Congress, section 8) 
 may be imposed on such importation.' 
 
 "Second Clause. — ' The privilege of the Writ, &c, shall not be 
 suspended, unless when, &c, the public safety may require it,' 
 and the word 'Legislature' dropped from Mr. Pinckney's clause." 
 
 The answer to " the departure from parallel" is this : — Had the 
 word "Congress" been omitted from the first clause, so as to read 
 " the importation, &c, shall not be prohibited," &c, that might have 
 been construed as prohibiting not only Congress but the States 
 from abolishing the slave trade before the year 1808, but the in- 
 sertion of the word " Congress," prohibited them only, and thus "in 
 the interim all the States were at liberty to prohibit it." — Muss. 
 Debates, p. 117. And the limitation on taxing was inserted, lest a 
 prohibitory tax should be imposed by Congress, (see Virg. Deb., 
 p. oi'il-o^l,) so the parallel is not departed from. 
 
 Passing from the Convention which prepared, to the State Con- 
 ventions which ratified and made it, what was their opinion of the 
 clause ? 
 
 So soon as the Federal Constitution had been framed, it was 
 submitted to Conventions of the respective States. The members 
 of those Conventions were generally the ablest in the States, and 
 anion"- them were the chief men who had themselves framed the 
 Constitution, and who, of course, knew what its several clauses 
 meant. 
 
38 
 
 In the New York Convention there were, among others, Hamilton, 
 Jay, Morris, and the Livingstons. In that of Massachusetts, were 
 Adams, Hancock, Crushing, and Gorham. In that of Virginia, 
 were Madison, Mason, Randolph, and Henry. It has been ob- 
 served, that in the Federal Convention, this Habeas Corpus clause 
 was adopted with very little debate. That is true, also, of the 
 State Conventions; for example, in that of New York, it is recorded 
 that " the Committee (of the Whole) then proceeded through sec- 
 tions 8, nine, and 10, with little or no debate. The fact is most 
 significant, but of what? It could not be that the subject was of 
 little importance, for the people of this country, as well as those of 
 England, had ever considered it of the greatest importance. 
 
 The Constitution was adopted in Federal Convention in Sept., 
 1787, it was first ratified by Delaware, in Dec, 1787, and, lastly, 
 by Rhode Island, in May, 1790. The second State that ratified 
 it was New York, in July, 1788. During that period the press 
 teemed with letters, essays, and addresses, for and against it. 
 Every material objection to it was taken up and discussed by 
 Madison, Hamilton, and Jay, in a series of papers, which, together, 
 are now known as The Federalist. Yet, in them, this clause is 
 mentioned but twice, and by Hamilton, who, in one, says, the 
 Writ is amply confirmed; and, in the other, (No. 84,) he argues 
 that it is secured by the Constitution as well as by a Bill of Rights. 
 That "the practice of arbitrary imprisonment has been, in all 
 ages, the favorite and most formidable instrument of tyranny," 
 and then cites from B.lackstone (vol. 1, p. 13G) the passage that 
 such imprisonment is more dangerous to liberty than violently to 
 take property or life ; but not a word is said about having taken 
 this power from the Legislature. It is true, then, that for some 
 reason, there was very little objection to this clause, and it is cer- 
 tain that there was no objection to it on the ground that the power 
 of suspending the privilege was to be exercised by a department of 
 the Government which should not exercise it. Nay, more, as to 
 which of the departments had it, there seems to have been a uni- 
 versal concurrence of opinion. 
 
 So objectionable were some parts of the Constitution to the more 
 Democratic part of the members, that some of them either left the 
 Convention itself, or refused to sign it, and afterwards did all they 
 
39 
 
 could, both in the State Conventions and elsewhere, to prevent its 
 ratification; among these may, especially, be mentioned, Luther 
 Martin, of Maryland: Yates and Lansing, of New York : Mason 
 and Edmund Randolph, of Virginia, and < Jerry, of Massachusetts. 
 In the State Conventions, the chief objections to it were that 
 it consolidated all the powers of the States and people in the 
 Federal Government; that their rights were at its mercy; that it 
 contained no Bill of Rights; that trial by jury, freedom of speech, 
 freedom from arrest, unless upon a warrant supported by oath, 
 and the prohibition of excessive bail, were not sufficiently provided 
 for; and, indeed, the Constitution was only ratified upon the well 
 understood assurance that these things should all be, as they were 
 immediately afterwards, secured by amendments. There were 
 other objections, too, some of them real, many of them chimerical. 
 Patrick Henry, above all others, was persistent in his objection to 
 it, on the ground that it did not sufficiently fence in and guard the 
 liberty of the people. Was there then no objection to this cla 
 The answer is, there were two objections. It was objected. 1st. 
 That the privilege ought not to be suspended for any time, or 
 at all. 2d. That, at least, the time of the suspension ought to 
 have been limited, as it was in the Constitution of Massachusetts. 
 whence it was borrowed; but, it was universally agreed, that Con- 
 gress clone had the power to suspend the privilege ; and those 
 objections were to entrusting that power even to Congress. It 
 was this universal understanding and supreme consciousness of the 
 fact, that Congress alone had the power to suspend, which accounts 
 for the fact, that neither in the Federal or in any of the State 
 Conventions, was there a question raised as to which department 
 of the Government had the power ; and that will now be made 
 evident by the express and recorded resolution of one Convention, 
 and by the declaration of every member of each Convention, who 
 spoke either for or against the clause itself. 
 
 In the New York Convention, on July 2, towards the close of 
 the proceedings, it is recorded in 1 Ell. Deb., p. 350, that "The 
 Committee (of the Whole) then proceeded through sections 8, nine, 
 (that in question,) and 10, of this article, (first,) and the whole of 
 the next, with little or no debate. As the Secretary read the 
 paragraphs, amendments were made in the order and form here- 
 
40 
 
 after recited. In the paragraph, "Sec. 0. Respecting the privi- 
 lege of the Habeas Corpus," Mr. Tredwell moved this amendment: 
 " Resolved, That whenever the privilege of Habeas Corpus shall 
 be suspended, such suspension shall, in no case, exceed the term 
 of six months, or until the next meeting of the Congress." Thus, 
 assuming that Congress passed the Act at one session, it sought to 
 limit the time, for which they should suspend it, to six months, or 
 till their next session. The New York Convention adopted the 
 Constitution; but they prefaced that adoption by a Declaration of 
 Rights, which they declared "cannot be abridged or violated," 
 and "are consistent with the said Constitution;" and one of them 
 is in these words — "That every person restrained of his liberty 
 is entitled to an inquiry into the lawfulness of such restraint, and 
 to a removal thereof if unlawful; and that such inquiry and re- 
 moval ought not to be denied or delayed, except when, on account 
 of public danger, the Congress shall suspend the privilege of the 
 Writ of Habeas Corpus." 
 
 Then followed certain amendments which they had confidence 
 would be — and which they enjoined their Representatives to exert 
 themselves to have — adopted; one of which is in these words, 
 "That the privilege of the Habeas Corpus shall not be suspended 
 for a longer term than six months, or until twenty days after the 
 meeting of the Congress next following the passing the Act for 
 such suspension." 
 
 These resolves set the whole question at rest. They express the 
 opinion of Hamilton, Jay, Livingston, Morris, Clinton, and others. 
 They have distinctly declared, in reference to the very clause in 
 question, that it is the Congress which has the power to suspend 
 the privilege; and the question now is, were they, who made the 
 Constitution, mistaken, or are those who differ from them mis- 
 taken ? 
 
 To these will now be added the recorded opinions of the makers 
 of the Constitution (and of those who ratified it) in the Conventions 
 of tlir several States. In reply to a congratulatory address, Mr. 
 Jefferson said: "The Constitution shall be administered by me 
 according to the safe and honest meaning contemplated by the 
 plain understanding of the people at the time of its adoption; a 
 meaning to be found in the explanations of those who advocated, 
 
41 
 
 not those who opposed it. These explanations are presented in 
 the publications of the times."' And the same sources of explana- 
 tion are referred to in Mr. Madison's letter to Mr. C. J. Cngersoll, 
 Feb. 22, 1831—4 Elliott's Debates, pp. 414, 446. It was Mr. 
 Tredwell who, in the New York Convention, moved the amend- 
 ment limiting the time of the suspension. He objected to any 
 suspension, but thought that at least its duration should be limited, 
 He, also, objected to the terms of the clause, which seemed to con- 
 cede a prior power in the General Government, of which it was 
 but the limitation. On these points he said, (2 Elliott's Debates, 
 p. 399,) "Why is it said that the privilege of the Writ of Habeas 
 Corpus shall not be suspended unless, in cases of rebellion or inva- 
 sion, the public safety requires it ? What clause in the Constitu- 
 tion, except this very clause itself, gives the General Government 
 a power to deprive us of that great privilege, so sacredly secured 
 to us by our State Constitution? Why is it provided that no bill 
 of attainder shall be passed, or that no title of nobility shall be 
 granted? Are there any clauses in the Constitution extending the 
 powers of the General Government to these objects? Some gen- 
 tlemen say that these, though not necessary, were inserted for 
 greater caution." That is to say, those who defended this Habeas 
 Corpus clause, among others, had justified its insertion, not for the 
 purpose of giving a power, but for greater caution to restrain a 
 power which otherwise might be exercised by the General Govern- 
 ment, certainly not by the Executive. No matter, however, about 
 that point; it is clear that Mr. Tredwell, ami all who heard him, 
 never questioned but that the power, with or without the clause, 
 belonged to Congress only. 
 
 Luther Martin, a delegate from Maryland to the Federal Con- 
 vention, opposed the ratification of the Constitution on the grounds, 
 among others, that it gave too much power to the General Govern- 
 ment, did not sufficiently secure the civil rights of the people, and 
 that it did not prohibit the slave trade. In his address to the 
 Legislature of Maryland, detailing the grounds of his objections, 
 he says : 
 
 "By the next paragraph, the General Grovemmenst have a power 
 of suspending the Habeas Corpus Act in cases of rebellion or inva- 
 sion. 
 
42 
 
 " As the State Governments have a power of suspending the Ha- 
 beas Corpus Act in those cases, it was said [in the Federal Con- 
 vention] there could be no reason for giving such a power to the 
 General Government, since, whenever the State which is invaded, 
 or in which an insurrection takes place, finds its safety requires it, 
 it will make use of that power. And it was urged that if you give 
 this power to the General Government, it would be an engine of 
 oppression in its hands ; since whenever a State should oppose its 
 views, however arbitrary and unconstitutional, and refuse submis- 
 sion to them, the General Government may declare it to be an act 
 of rebellion, and, suspending the Habeas Corpus Act, may seize 
 upon the persons of those advocates of freedom who have had 
 virtue and resolution enough to excite the opposition, and may 
 imprison them during its pleasure, in the remotest part of the 
 Union ; so that a citizen of Georgia might be bastiled in the farthest 
 part of New Hampshire, or a citizen of New Hampshire in the 
 farthest extreme of the South, cut off from their family, their 
 friends, and their every connection. These considerations induced 
 me, sir, to give my negative to this clause, also." 
 
 Mr. Martin's objection was to any suspension — even by Congress. 
 It had not entered into his imagination that the Executive could 
 claim, or that others would claim for him, this objectionable power. 
 
 In the Massachusetts Convention, the Constitution was debated 
 between January 9th and February (3th, 1788. On January 26th, 
 the Journal of the debates records that — 
 
 " The paragraph which provides that the privilege of the Writ 
 of Habeas Corpus shall not be suspended unless in cases of rebel- 
 lion or invasion," was read, when General Thompson asked the 
 President to please to proceed. "We have," said he, "read the 
 book often enough; it is a consistent piece of inconsistency." 
 
 Hon. Samuel Adams, in answer to an inquiry of the Hon. Mr. 
 Taylor, said : " That this power given to the General Government 
 to suspend this privilege in cases of rebellion and invasion, did not 
 take away the power of the several States," &c. 
 
 Dr. Taylor asked, why this darling privilege was not expressed 
 in the same manner it was in the Constitution of Massachusetts? 
 Here he read the latter, and remarked on the difference of expres- 
 sion, and asked, why the time was not limited ? 
 
43 
 
 Judge Dana said, " The answer, in part, to the honorable gen- 
 tleman must be, that the same men did not make both Constitu- 
 tions; that he did not see the necessity or great benefit of limiting 
 the time." Supposing it had been, as in our Constitution, "not 
 exceeding twelve months," yet, as our Legislature can, so might 
 the Congress, continue the suspension of the Writ from time to 
 time, or from year to year. The safest and best restriction, there- 
 fore, arises from the nature of the cases in which Congress are 
 authorized to exercise that power at all, namely, in those of rebel- 
 lion or invasion. These are clear and certain terms, facts i f pub- 
 lic notoriety, and whenever these shall cease to exist, the suspen- 
 sion of the Writ must necessarily cease, also. He thought the 
 citizen had a better security for his privilege of the Writ of I [abeas 
 Corpus under the Federal than under the State Constitution, for 
 our Legislature may suspend the Writ as often as they judge "the 
 most urgent and pressing occasions" call for it. He hoped these 
 short observations would satisfy the honorable gentleman's inqui- 
 ries, otherwise, he should be happy in endeavoring to do it by 
 going more at large into the subject. 
 
 Judge Sumner said, that this was a restriction on Congress, that 
 the Writ of Habeas Corpus should not be suspended except in 
 cases of rebellion or invasion. The learned Judge then explained 
 the nature of this Writ. 
 
 This privilege, he said, is essential to freedom, and, therefore, 
 the power to suspend it is restricted. On the other hand, the 
 State, he said, might be involved in danger; the worst enemy may 
 lay plans to destroy us, and so artfully as to prevent any evidence 
 against him, and might ruin the country without the power to sus- 
 pend the Writ was thus given. Congress have only power to sus 
 pend the privilege to persons committed by their authority. A 
 person committed under the authority of the States will still have 
 a right to this Writ. 
 
 After the several articles had each been debated, there was a 
 discussion upon them generally, when Mr. Nason said — 
 
 " The paragraph that gives Congress power to suspend the Writ 
 of Habeas Corpus claims a little attention. This is a great bul- 
 wark — a great privilege, indeed. We ought not, therefore, to give 
 it up on any slight pretence. Let us see : how long is it to be 
 
44 
 
 suspended? As long as rebellion or invasion shall continue. This 
 is exceeding loose. Why is not the time limited, as is in our 
 Constitution ? But, sir, its design would then be defeated. It 
 •was the intent, and by it Ave shall give up one of our greatest 
 privileges." 
 
 In the Virginia Convention. — It would be tedious to cite all the 
 passages which assert the power of Congress alone to suspend 
 this privilege. Neither those in favor of, nor those opposed to, the 
 Constitution in a single instance attributed that power to the Pre- 
 sident. Two passages only will be quoted. Mr. Nicholas, who 
 supported the Constitution, said — " But it is complained that they 
 (the Congress) may suspend our laws. , The suspension of the Writ 
 of Habeas Corpus is only to take place in cases of rebellion or in- 
 vasion. This is necessary in these cases, in every other case Con- 
 gress is restrained from suspending it. In no other case can they 
 suspend our laws, and this is a most estimable security. — Virg. 
 Deb., 81. 
 
 Mr. Grayson opposed the Constitution ; he said — " The second, 
 clause, ninth section, of the first article provided, that the privilege 
 of the Writ, &c. Now, if this restriction had not been here in- 
 serted, would not Congress have had a right to suspend that great 
 and valuable right ?" — lb. p. 319, 330, 407 ; see also pages 50, 81, 
 179, 327. 
 
 In 1807, on the occasion of Burr's conspiracy, the Senate of the 
 United States passed a bill to suspend for three months the privi- 
 lege of the Writ of Habeas Corpus. Among the Senators then 
 present were George Clinton, Timothy Pickering, James A. Bayard, 
 Samuel Smith, William B. Giles, and John Quincy Adams ; the 
 bitter three brought in the bill. 
 
 In the House were John Randolph, Josiah Quincy, Nathaniel 
 Macon, Livingston, Theodore Dwight, Pitkin, Dana, and others, 
 eminent for their learning. The bill was objected to on the grounds 
 that it was bad in principle, dangerous as a precedent, and would 
 be abused in practice if imprisonment at will were intrusted to 
 even the best of Presidents. It was argued that it suspended the 
 personal rights of the citizen, it would place them under a military 
 despotism, it dispensed with the operation of the laws, and that the 
 
45 
 
 public safety did not require it — and 113 voted against, and only 
 19 for it. 
 
 That was instantly followed by a bill to further secure the pri- 
 vilege to persons in custody, under the authority of the United 
 States. Its mover, James M. Broome, of Delaware, said, " In oi di- 
 nary times there was no temptation to transgress the limits of con- 
 stitutional law ; but in times of turbulence, the formal recognition 
 of rights would be a feeble barrier against the inflamed passions of 
 men in power, whether excited by an intemperate zeal for the sup- 
 posed welfare of the country, or by the detestable motives of party 
 rancor or individual oppression." The debates are full of the like 
 sentiments. The bill was postponed by a vote of 68 to 50 ; but 
 in the debates on both bills it was unanimously agreed that Con- 
 gress alone could suspend the privilege ; indeed no man questioned 
 that. See 3 Benton, Ab. Deb., p. 490-542. 
 
 Of Judicial Authority. — MARSHALL, Ch. J., said, in 1807, in 
 ex parte Bollman, 4 Cranch Rep. 101 : " If at any time the public 
 safety should require the suspension of the powers vested by this 
 act in the Courts of the United States, it is for the Legislature to 
 say so. That question depends on political considerations on which 
 the Legislature is to decide. Until the Legislative will be ex- 
 pressed, this court can only see its duty, and must obey the laws." 
 
 Judge Story, Commentaries on the Constitution of the United 
 States, vol. 3, p. 209 : " Hitherto no suspension of the "Writ has 
 ever been authorized by Congress since the establishment of the 
 Constitution. It would seem, as the power is given to ( 'vngress 
 to suspend the Writ of Habeas Corpus in cases of rebellion or in- 
 vasion, that the right to judge whether the exigency had arisen, 
 must exclusively belong to that body." 
 
 Taney, Ch. J., in ex parte John Merryman : " Merryman was 
 arrested by a military officer, without oath or warrant, and without a 
 proclamation or order of the President suspending the privilege ; but 
 he had delegated that power to the officer to be exercised when he 
 should think proper to exercise it. The Chief Justice decided the 
 very point, holding it as hitherto unquestioned by anybody, that 
 Congress alone could suspend the privilege." 
 
 Woodbury J., in Luther vs. Borden, 7 Howard 80, assumed it 
 as undoubted, that Congress alone had this power, and says of the 
 
46 
 
 arrests in Burr's conspiracy : "And Congress then declined to 
 suspend that Writ * * * although the bill provided it should 
 he done only when one is charged on oath with treason. Such a 
 measure was deemed at best but a species of dictatorship," even 
 when done by Congress. 
 
 Of Commentators and Text-writers. — Rawle on the Constitution, 
 p. 114. — " Of this (requirement of public safety) the Constitution 
 probably intends that the Legislature of the United States shall 
 be the judges, charged as they are with the preservation of the 
 United States from both those evils, (rebellion and invasion,) and 
 it seems not unreasonable that this control over the Writ of Habeas 
 Corpus should rest with them." 
 
 " We have seen that there is one law, securing the privilege of 
 the Writ of Habeas Corpus, which cannot be suspended even by 
 the Legislature, unless in the extreme emergencies of rebellion or 
 invasion." — Walker's introduction to American Law, p. 195-6. 
 
 Henry St. George Tucker's Commentaries, 1836, vol. 1, p. 
 42. — Congress alone can suspend the privilege of the Writ of Ha- 
 beas Corpus. Such an attempt was made during the apprehen- 
 sions entertained of Col. Burr's designs, but failed." 
 
 Theodore Sedgwick, in his Commentaries on Statutory and 
 Constitutional Law, ( 1857,) p. 598, says : 
 
 " Practically, as yet, Congress has never authorized the suspen- 
 sion of the Writ. It is understood that as the unlimited power 
 ( in cases of rebellion or invasion) is vested in Congress, the right 
 to judge of the expediency of the exercise is also vested absolutely 
 in that body." 
 
 Smith's Commentaries on Constitutional Law ; p. 364. — This 
 author considers " the restrictions laid upon the Legislative power 
 of the L^nion, under express prohibitions found in the same instru 
 ment; and among them is that which forbids the Habeas Corpus to 
 be suspended." 
 
 The last Commentary on the Constitution is that of George 
 Ticknor Curtis, of Boston, in the second volume of whose work, 
 published in 1858, he says, — " There now remains to be considered 
 the restraints imposed upon the exercise of the power of Congress 
 both within the States and in all other places ; some of them relate 
 to special powers, "but others are introduced which apply to the 
 
47 
 
 exercise of all the powers of Congress, ami arc in the nature of 
 limitations upon its general authority as a Government — one of 
 these is embraced in the clause that the privilege of the Writ of 
 Habeas Corpus shall not be suspended," &c. 
 
 The only comprehensive treatise on the Writ of Habeas Corpus 
 published in this country is that by Mr. Rolin C. Ilurd, of Ohio ; and 
 published in 1858. In that work Mr. Ilurd says, "Rebellion and 
 invasion are eminently matters of national concern, and charged 
 as Congress is, with the duty of preserving the United States from 
 both these evils ; it is fit that it should possess the power to make 
 effectual such measures as it may deem expedient " to suppress 
 them." And he is clearly of opinion that Congress, alone, can 
 suspend the privilege of the Writ. — p. 133. 
 
 Of the Judicial Opinions. — Chief Justice Marshall had been a 
 member of the Virginia Convention, which adopted the Constitu- 
 tion. He was intimate with Madison and the other eminent Vir- 
 ginia Statesmen, who aided to prepare it. In the State Convention, 
 itself, he heard it over and over again asserted, and never denied, 
 that Congress alone could suspend the privilege, and he was doubt- 
 less perfectly familiar with the history of the clause, itself. 
 
 He was Chief Justice when the alleged accomplices of Burr were 
 arrested, and when President Jefferson conceded that he had not 
 the power, and when Congress acted under it, but refused to sus- 
 pend the privilege. It was at this very time, viz., in 1807, he gave 
 his opinion in ex parte Bollman, 4 Cranch. 101. To say that he 
 did not understand the meaning of this clause is, to say the least 
 of it, highly improbable. Judge Story may have used loose and 
 inaccurate expressions, but no man was better informed than he 
 was, as to the history of the Constitution, and in it he failed to find 
 a spark of evidence that the Executive had this power. 
 
 Of Chief Justice Taney's decision, — the best vindication is that 
 the eminent men who prepared the Constitution ; those who in the 
 several State Conventions discussed this and its other clauses, and 
 who adopted it ; the Judges of the Supreme Court who have since 
 considered it: the statesmen who have thence, till 18G1, adminis- 
 tered the General Government ; the several Text-writers, Commen- 
 tators, and Lawyers who have written upon the Constitution, have 
 
48 
 
 all, "without a single exception, maintained the position on which 
 he based his judgment. 
 
 In conclusion, one topic, though of little weight as an argument, 
 may be noticed ; it has been said that the " President has no power 
 that can be abused, except with more danger to himself than to the 
 community;" and that in Mr. Bulwer Lytton's opinion, ours is "the 
 feeblest Executive perhaps ever known in a civilized community." 
 
 Is it not plain that the inference from all that is against the 
 President's having the power to suspend the Habeas Corpus ? If his 
 power be so limited as to make him " the feeblest Executive ever 
 known," who made him so feeble, but the Federal Convention ? 
 It was not by accident that such men as were in it kept power 
 from him ; it was by design, and in that is seen another evi- 
 dence of their intention to withhold from him the prerogative of 
 suspending the peoples' privileges. But if they thus well and 
 wisely withheld so much power from him, has not the influence of 
 his office increased, and is it not increasing ? When in 1690, the 
 English Crown was settled upon William III., its powers were 
 limited and fixed bylaw; but, substituting the "President" for 
 the "Crown," the words of a philosophic Englishman are true of 
 the office of the former. "From the time of the Revolution accor- 
 dingly we may trace in some measure a new order of things ; a new 
 principle of authority, which is worthy the attention of all who 
 speculate upon political subjects. Before that period, the friends 
 of liberty dreaded only the direct encroachment of the prerogative. 
 They have since learned to entertain stronger apprehensions of the 
 secret motives of interest which the Executive may hold up to 
 individuals, and by which it may seduce them from the duty which 
 they owe to the public. To what a height in fact, has this influ- 
 ence been raised in all the departments of Government, and how 
 extensively has it pervaded all classes and descriptions of the in- 
 habitants ? In the Army, in the Navy, through the Custom Houses, 
 the Post Offices, the Mints, and through a partizan Newspaper press ; 
 together with many other offices connected with the distribution 
 of justice, the execution of the laws, and the corps diplomatique. 
 V, ith what a powerful charm does it operate in regulating opinions, 
 in healing grievances, in stifling clamors, in quieting the noisy 
 patriot, in extinguishing the most furious opposition. 
 
 " It is the great opiate which inspires political courage and lulls 
 reflection ; which animates the statesman to despise the resentment 
 of the people ; which drowns the memory of his former profes- 
 sions, and deadens, perhaps, the shame and remorse of pulling 
 down the edifice which lie had formerly reared." — Millar on Gov., 
 vol. 4, p. 94. 
 
 Philadelphia, March 4th, 1SG2.