The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1861-07-29
me WRIT or HAseAs CORPUS.
opinion Of the Attorney General on the Sus'
pension OF the Writ Of Habeas Corpus
ATTORNEY GENERAL . OFFICE, July 8, 1851,

following questonss-
J. III tho praseut time OF grea. and dangerous insur
tcclin, as the President the discretionary power 10
CAUSE be arrested and held in custody persons known
y have criminal Intercourse with tho Insurgents or per
Sons against whom there Is probable cause Tor suspicion
II sacb criminal eomplictys
In such cases O. arrest tho President justified in
refusing obey writ Of habcas corpus issued by acour
Or Judge requiring bis agent TO produce the body
the prisoner and show the of his caption and
Action to be adndged and disposed Of by such court
~ Judge?
10 make my answer to these questions at conss
Tent and plain find convenient to advert to the great
prncplc of government recognized aud upon
most II not all The countries In Earope mark the
MRarence between that principle and the great principle
which Hes at the bottom Of our national government
MOST European writer's upon government assume, ex
PeSly or BY implication, that every national govern
tnant IS and must DO, the fun expression and representa-
nOn OF the nation which governs armed with all its
Powers and able 10 all is rights In England the
Sorn OF whose government nearly approxmates our
own and where tho rights interests and powers VI the
people arc moro respected and cared for than in most Of
Mo nations OF the European Continent il has grown into
% axiom that "the Parliament Is omnipoient that is,
that can do thing that possible 10 be done by le
gslatoD or by Judgment For all The onds government
tho Parliament Is the nation. Moreover Europe gene
rally tho sovereignty is vested yisbly in desig
mated man SGT Of men, that the subject people
200 their sovereign as well as feel the workings Of his
power. But IN this country II has been carefully pro
vlded o,herwisc III tue formation OF our national gov
eminent our fathers We're surrounded with peculiar diff
culties arising out OF their novel may say uncxamped
condition. In resolving to break the ties which had
bound them to the British empire their complaints were
ieveed chiefly at the King not the Parliament nox the
people They seem TO have been actuated by special
droad OF tho unity OF power and henco IN framing VIE
constitution they preferred 10 take the risk OF leaving
soe good undone, for ,k of power ia the agent rather
Than arm any governmental officer w~.h such great
powers for evil as implied in the dottoria charge
1850 that no damage comes to the commonwealth"
Hence, keeping the sovereignty Always out Of sight,
may adopted the plan OF checks and balances forming
taparate departments Of government, and giving each
aapartment separate and limited powers These depart
oons are coordinate and coequathat s. neither being
IS
ordinate to the others, either of them both Of them
tcgater. We havo three OF these coordinate depart
mon;s. Now, If allow of the three to determine
tho extent Of its own powers ard also the extent Of the
government, and has, tn fact achieved the sovereignty
We ought not to say that our system is perfect, for its
eafects (perhaps inevitable all human things Oh
vio1s Our fathers, having divided The government
coordinate departments did not try (and ii they
had tried, woald probably have failcd) create
aroter among them to adiadge their conflicts and
Keep them within their respective bounds. They
ssIt, by deslgn, ! suppose, each Independent and
nee, 10 act oat its own granted powers without auy
Ordained legal superior possessing the power revise aud
reverse its action And this with the hope That The three
departments mutually coeqial and independent would
keep each other within their proper spheres b. their nu
eunl antAgonimhat is, by the system Of cheeks and
balances 10 which fathers driven the begin
asns by their fear Of the unity Of power,
In this view OF the subject it is quite possible the
sae identical question ot caSe) to up egitimatey
before each one Of the three departments and be
nmed IN three different ways and each decision stand
sevocabe bndng upon the parties to each aud that
ter the simple that the departments ordinate
pa tero ~ no ordained legal superior, with power TO
Visa and reverse their decisions
TO that the departments Of government are CO.
rdnate to say that the judgment Of one Of them is not
biing upon the other two the arguments and prn
sipies involved in the Judgment. II binds only the
parties to the case decided. But if, admitting
That the departments Of government arc co-ordi
nate, be s,il contanlcd that the principles adopted by
pne department il deciding properly before it are
stndihg upon another department tina, obligation must OF
nocessy be recipocal-thn is if the President be bound
BY the principles aii down by the Judiciary so also is
toe judiciary boand by the principles laid down by the
president And thus shall have theory Of conStitl-
ttoaai government fatty contradctins Itself Denart
nsnts coordinate end cocquai and yet recprocay
Ordinate to zach cther That cannot he The several de-
pAetnahs touGh far from sovereign are free and indie
gsaceut, i'll the exercise Of tine limited powers granted to
them respectively rs the constitution. Or government
indeed, Is wh1!e Is not vested with tho sovereignty
&nd does not possess Nh the powers Of tho nation. has
- powers bat sach as granted by the constitutions
md many powers are expressly Withheld The nation
certainly Is coequal with all other nations aud has
squa! powers but IL has not chosen delegate all IT'S
powers 10 This government in any ak Of It's departaens
me government, as whole is limited, and llHed in
NJ ts departments IL is the especial fenctica Of the
Judiciary TO hear and determine casee establish
principles nor scttle questions conclude aay
person bot he parties and prvies 10 the adiaigcd
It's powers aTe specially granted and defined by the
Triton, article 9, ecctiop ..
'1he Judica power shall extend to all cases in a and
putty arising under this constitution the laws of tbs
DATED state and treaties made, and which shall be
bAdors, other ministers and coss all cases Of adni-
rally and maritime jurisdiction; controversies 10 which
tae United States shall be party; controversies he.
tween two States between States and citizens Of
Nher States between citizens Of different States between
ssSsrcn, S,stcs n"d h,, la .i me i~fi's o'
4, and foreign States, citizens subjects is e
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