Bedford inquirer. [volume] (Bedford, Pa.) 1857-1884, 1861-08-09
BY DAVID OVER.
TEE WRIT OF HABEAs CORPUS.
Opinion OF fhe Attorney General ON
the suspension of the Writ of
Habeas Corpus.

@AAAOSNGA ALNLRFAA OEAANGg "
To THE PREsIDENT-S Sar; You have re-
quired my opinion in writing upon the follow
ing questions.-
l. In the present time of . great and dan
gerous insurrection, has the President the
discretionary power to cause TO bs arrested
and held in custody persons knoBn to have
criminal intercourse with the insurgents, or
persons against whom there is probable eause
for suspicion Of such criminal completely!
II. Ia such cases of arrest is the President
justified in refusing to obey writ Of habeas
corpus issued by court or judge, requiring
him or his agent to produce the body Of the
prisoner, and show the cause os his capture
and dstention, 10 he adjndged aud disposed of
BY such court or judge2
To make my answer to these questions at
once consistent and llain, find it convenient
to advert to the great principle of government
as recognized and acted upon in mcst, if not
all, the countries in Europe, and to mark the
difference between that principle, and the great
principle which lies at the bottom of our ma
tonal government.
Most European writer's upon government
assume, expressly or by implication, that every
national government is, and must be, the full
expression and representation Of the nation
which it governs, Iarmed with all its powers
aud able to assert all its rights La England,
the form Of whose government more nearly ap-
proximates our own, and where the rights, in-
terests aud powers Of the people are most res
peGted aud cared for than IN most of the ma
tons of the European Continent, it has grown
into an axiom that ''the Parliament is omnipo-
tent" that is, that it can do anything that is
L. j. L., 4 -, l.,
ment. For ell the ends Of government the
Parliament is the nation. Moreover, in Eu-
rope generally, the sovereignty is vested vis-
IDLY in some designated man or set of men, 30
that the subject people can see their sovereign
as well as feel the workings of bis power
But 10 this country it has teen carefully pros
vided Otherwise. In the formation of our na-
tionaI government our fathers were surround
ed with peculiar difficulties, arising cut Of
their novel, may say unexAmPled, condition.
10 resolving to break the ties which had
bound them to the British Empire, their CONS
plants we're leyeled chiefly at the King, not
the parliament nor the people. Thoy seem to
have been actuated by special dread of the
unity of power, and hence in framing the Con-
stisution, they preferred TO take the risk Of
leaving some undone, for lack of power 10 the
agent, rather than arm any governmental Off
Ger With such great powers for evil as are im-
piled 10 the dictatorial charge to ''see that
no damage comes 10 the commonwealth"
Hence, keeping the sovereignty always olt
of sight, .they adopted the plan of "checks and
balances" forming seperate departments of
government, and giving each debartment seps
crate and limited powers. These departments
are coordinate and eoequal, that is, neither
being sovereign, each is independent in its
sphere, and not subordinate to the others,
either of them or both Of them together. We
have threo,of these coordinate departments
Now, If We allow one Of the three to determ-
ine the extent of its own powers, and also the
extent of the powers of the other two, that
one can control the whole government, and
has in fact achieved the sovereignty.
We ought not to say that our system is per-
feet, for its defects (perhaps inevitable in all
human things are Obvious. Our fathers, have
ing divided the Government into coordinate
departments, did not even try land if they had
tried, would probably have failed) to create an
arbiter among them to adjudgs their conflicts
and keep them within their respective bounds.
They werc left, by design, | suppose each inN
dependent aud free, 10 act out IT'S own granted
D9WEIc3 MliHOuA aDJ 4GSa4 oApOttOA
possessing the power TO revise ard reverse its
action. And this with the hope that the three
departments, mutually coequal and Independent
you'd keep each other within their proper
spheres by their mutual antagonisn- hat isi
By the system of checks and balances, to which
our fathers were driven at the beginning by
their fear Of the unity Of power
In this view of the subject, il is quite posN
sible for the same ident tical question (uot case
to come up legitimately before each one of the
three Departments, aud be determined iu three
different ways, aud each decision stand irreVo'
cable. binding upon the parties to each case;
and that, for the simple reason that the Des
parsments are coordinate, aud there is no or'
dainsd legal superior, with power 10 revise
ard reverse their decisions.
TO saw that the Departments of our;Gevernz
ment are coordinate, is 10 say that the Judg'
ment of one of them is not binding upou the
other two, as to the arguments aud principles
involved 10 the judgment. 1t binds only the
parties to tie case decided But if admitting
that the departments of Government are co0ra
dinate, it be still contenaed that the principles
adopted by one department, i'm deciding q case
properly before il, are biading upo0 another
department., that obligation must OF necessity
De reoiprocal-thas is. If the President be
bound by the principles laid down by the Jua
dietary, SO also is the Judiciary bound by the
principles laid down by the President. And
thus Re shall have theory of constitutional
government fatty coHtradicting itself De-
partments coordinate aud coequal, and yet reA
cIproeally subordinate to each other. Thai
cannot be. The several departments, though
!iar lat from sovereign, are free and independent