New-York daily tribune. [volume] (New-York [N.Y.]) 1842-1866, 1861-07-30
TIE URIT or HABEAS CORPUS.
OPINION OF THE ATTORNEY-GENERh ON IIib SoS-
PENSION OF THE WRIT OF HABEAs coRPos'
ATTORNEY GEyERALs OfTlcr, July ., iooI'

PENSION OF THE WRIT OF IiAbbAS I'm" 10
ATTORNEY GYvFR.L's OFTicT, July D, looIS
To TIE PRrslDExr-Sr. You have required iny
opinion in writing upon the following questions
]. In the pteseu tiue 81 great ana dangerous NE
sure ction, has the President me
60 canse 10 be arrested and heid III CUSTODY persons
known 10 have criminal intercourse WIN the lhnf
ents or ersons against whom there IL probable cause
for susricion Of suoh criminal couIhdiy
NJ IL srcb cases Of arrest s The President justified
=, f,sir% 70 oley writ Of habeas corpus Issued by
. c,rt ar ind e. requiring him or liz agent 10 pro-
duce tie body OF The prisoner and show the cause 81
his artue and deenton 20 be aGJudged and disposed
of by such cont or judgef
To make my answer TO these questions az once con-
stept and plain, find il convenient 20 advert to the
great principle Of government, recognized and acted
mon in no if not all, the countries in Europe, and
10 mark the difference between that principle, and the
great principle which lies at the bottom Of our national
government.
Most European writers upon government assume,
expressly or by Implication that every national gov
eminent is and must be, the full expretson and repre-
sentaton Of tie nation which il governs armed with
all its powers and able TO assert all its rights. In En-
gland, the form OF whose government more nearly ap
proximates cur OwD, and where the rights interests
and powers of the people respected and cared
for han in most Of the nations of the European Cont
nent it has grown into axiom that I" the Parliament
il omnpotent" that s that il DO anything that is
possible 10 be done by legislation by Judgment.
For all he ends Of government the Parliament s the
nai,n Moreover, in Europe generally the soycr'
eiguy s vested yisbly in some designated man or set
of men, that the subject people their SOW
ereign as Wei as feel the workings Of bis power.
But in this country it has been carefully provided
otherwise. In the formation Of onr national govern
ment fathers were surrounded with peculiar diff
culties arising out of their novel, may cay unex-
aUped, cOpdition. In resolving 10 break the ties
which had bound tNem TO the British Empire, their
complaints were leyeled chiefly at the King. not the
Parii ment nor he people. They seem 10 have been
actuaed ly special dread of the unity of power, and
hence in irauiug the CoutitutiUn, they PREFER 10
take he sk OF leaving good undone, for lack OF
power in tie agent rather than arm any governmental
officer with such great powers for evil as are implied
in Tic 1ctatCria charge ~ Fec that damage cones
10 q commonwealth.
Hence keel ing the sovereignty always ont Of sight,
they adopted the plan of checks an balances form
ing separate departments OF government, and giving
each department GepaIate and limited POWeTs. These
Departments are coordinate and eoequal, that Is: nd
her beig sovereign each Is pend ~ IN it, sphere,
not subordinate 10 the OtheIs, either OF them or
both If them together. We have three d these
coordinate departments. Now if we allow ore Of TIE
three 10 determine the extent OF ils powers, and
also the extent of the powers Of the other two that
aG isved the soyepisIty.
We ought not TO say that system is perfect, for
lie defects perhaps inevitable IL all human things
obvious. Our fathers, having divided the Government
iuto coordinate depar ments Cid lot even thy and II
they lad riej, would probably have filled 70 create
aTbieT among them 10 adludge their conflicts and
keep them within tLtir respective bounds. Tneyvere
lett, by design suppose, each independent and Tree,
to act ont It's own granted powers without any or
Gained legal superior possessing tie power TO revise
and reverse its action And tits with the hope that
tie three departments, mutually coe9ual and iude-
pendent, would keep each other within their proler
tphcTes by their mutual ia-tntt D., by The
e,sen OF checks and balances, 10 which OIL fathers
driven a, The beginning by heir fear II the unity
Of power.
Tie identicsl question not cafe ~ legi'
-ately before each f Tie three Departments, ana
be determined in three different WAYS, and each de-
cision stand irevocsble binding uron the parties 10
each case; and that iOf he lmple reason that tie
Departments coordinate, and there is ordained
legal superior, with power to revise and reverse their
Geaisions.
To say that the Departments OF orr Government
are coordinate is 10 say tat the judgment Of one OF
them is lot binding upon the other two, as 10 the
arguments and principles involved in the Judgment
II Unds only the parties TO the case decided. But ~
admitting that the departments Of Government are
coordinate il be still cOBteDdcd that the principles
adopted by department. IN deciding properly
before II, binong ulon another department, that
obi cation muT of necessity be recirrOcsl-that is If
the President be bound by the principles laid down by
the Judiciary ALEC rs the judiciary bound by The
prir Gples laid down by the President. And thus We
shall have theory Of constitutional Cove rnment fatty
contradictiug itself. Departn euts coordinate and
cOeqval and yet reciprocity subordinate TO each other
That cannot be- The several departments, though far
from sovereign free and independent III the eXer
else OF the limited powers granted TO them respectively
by the constitution. Our Government indeed, q
whole il not vested with The sovereignty and ooes not
possess ell the powers Of the nation. 1t has powers
but such granted by the Constitution and many
powers are expressly Withheld. The nation certainly
is cOeqaa with al other nations, and has equal powers
but II has not chosen 10 delegate all its powers
to this Government, in any all Of is departments
The Government as a whole, Il limited, and limited
in Ill s departn ents 1t il the especial function Of
the Judiciary 10 hear and determine cases lot 10 'es
tablsh principles" nor settle questions 30 az 10
conclude any person but the parties and pryies 10 the
cases adudged. It's powers specially granted aud
defined by the Constitution, article g. section ..
The jaeid psve shah extend to all in law aud equity
and aes aGe ard VII ca sb made their author
ity ell affecting EmbssssdoIs other ministers and
ifovees with The United States shall BE- parry y COMO.
vTsiet beween ~ or more sses between states and GU
Cz-ns OF the state claiming land uuder grant Of
sstes and State the citizens thereof and
foreign stGtet, citizens or fubjects"
AND that is the of It's powers, ample and Elf
Gent for al tie purposes Of dstrbutiye justice among
individual PARTIES, but powerless to impose rules OF
action aud Of Judgment upon the other departments.
Indeed it is not itself bound by it's ded ons for
il can and often does, override aud disregard them,
in common honesty it ought 10 DO, whichever 1t finds
by its alter and better lights, that its former iudg
nens were wrong.
Ofall the departments Of the Government the Presi-
dent the most active and the most constant in action
he il called "the EXecuLye; and III fact he a. and
much also for tie Constitution has imposed upon
him many important duties, aud gran ed 10 him great
powers which in their nature not executive-such
as the veto power, the power b send and receive
bassador tie power 20 make treaties, and the power