The Ottawa free trader. [volume] (Ottawa, Ill.) 1843-1916, 1862-01-11
For the Free Trader.
The Habcas Corpus Question.


: denial of the operation of the habeas cor
pus, In the cases Of those arrests, has mad
! Justly profound impression upon tn
minds of the American people. 1t ha
been cited by jefferson Davis, in his mes
sage to the assumed Congress Of tn
Southern COnfederacy, as an instance o
= the exercise OF an unlawful aud despoti
power, that ought to subject the Govern
ment of the United States TO the hatret
OF the people of the Confederate States
and the contempt of enlightened Govern
ments elsewhere. Congress have been il
session for more than a month, and hav,
not acted on the question and, in debat.
upon it, seemed TO admit, that the fact il
true, but seem also to suppose that the,
repel the inference that Davis draws from
IT, by alledging the fact that the publ,
safety requires the exercise OF the power
The people seem to acquiesee in this con
ciusion; but seem also to feel humiiated
by the acquiescence This humiliation
dampens the ordor Of patriotism, anC
weakens the arm Of the Government ano
well 1t might, if the conclusion upon
which II rests were true. | think the
conclusion is not well founded that the
humiliation is needless; and that the
people ought to know it, To that end |
hastily, imperiectly, bat enough to let
that section OF the American people that
read the FREE Trader sea that they have
have no reason to contemn the Constitu
t!on OF their country, for the want of a
vital power adequate TO its own pIeserva
ton and perpetuIty. Nor, Is long as
live, and II survives, shall any assault ever
be made upon II, open or covert that
Will not to the full extent OF nv humble
ability, repel.
There is no affirmative authority given
10 the Government of the United States
by the Constitution, to suspend the writ
o. Iiabeas Corpus. But there is in the
| Constitution, what Is more to 1he purpose
( a recognition OF the fact, that the power is
/ inherent In every supreme Government
and the reason OF the recognition is mani
I fest. 1t Il, that in the exigencies that
I require Its exercise, IL q vital power as
necessary to the hte OF tho Government
as the atmosphere Of heaven TO the sus-
! tenance OF animal life Wisely, therefore.
. the Constitution does not confer the power,
( any more than It confers the power OF
breathing the circunambient air. 1t re-
cognIZes Its existence, and that is enough
! 1t gestrains It's exercise but that Is foreign
T TO the presC TT question.
The only clause in the Constitution re.
latng 10 ,Ais subject, is the following in
the I'd clause OF Sec. : article l.:
The privilege Of tile writ of uabeas
Corpus snail not be suspended. unless
when. in cases of rebellion or invasion.
the public safety may require il
1t may, then, be suspended, by the Go
vernment, but IN respect TO what depart
nIent ot II, shall the power of sJispendlng
it, the text of the Constitution is silent.
We INST therefore look into the cor
text in which it stands, to find ont: in
default OF finding what We seek there. We
must examine the subject matter itself TO
ascertain. Between the two We shall not
be apt to be lef, in much uncertainty.
seefion errirr tiiiIfirtis4tteiS ptee-HAsi sesed
IN which the clause in question is CON
tained) consists of eighteen clauses, each
granting affirmative powers 10 Congress.
l. The first clause is "a li:ni,atton on the
power OF Congress, tey;ually expressed.
, The second clause is the one in ques-
ton.
3 The subject matter OF the third clause,
! makes ii undeuiably limitation on the
powers of Congress.
T. The fourth clause the same.
). The fifth clause the same.
g. The sixth clause il, apparently, &
tive department of the Government
:. The seevnth clause, is, apparently, lst
limitation upon the powers OF Congress
/ and ID upon the executive officers o. the
/ Government.
/ 1t Is clearly manifest, that the context
I does not settle the question as to where
/ the power in question belongs.
We are left free therefore, 10 examine
/ the subject matter Of the clause itself, to
ascertain.
/. /, cannot belong TO the judicial De
partment, because the very object OF that
part of the clause in question is, to de.
I prive that department Of It's ordinary and
wonted power.
> The object of the clause is, TO enable
the Executive department TO do acts, that
the Judicial department might, but for the
l clause, claim the right TO prevent their
doing But it is a principle lying at the
! foundation of all governments, state and
national. that the same department shall
not be.-s2 far as Il IS possible 10 av0ld tt, at
/ once le judge and executor of any power
O. deere. of the Government.
5 1t results, therefore, that it is neces,
sarily within the power. ana Is the duty
of the legislative department, to precribe
the cases in which the writ may be sus
OF proceeding.
j. But what if Congress fail to exercise
the power; is it for that reason 10 remain
a barren power, dead, inert, and inpera
tive?
). We have seen that it was a vital
power Is the life Of the Government tc
fail, because one department of 1t, in q
single case, upon single question, failed
to perform its duty? The question com
prehends its own answer-Ie is not 9
statesman, nor yet a lawyer, who would
answer it in the affirmative
g. There is no law, directory to the
Executive department on this subject, on
the Statute book The President called
a session of Congress, which met, while
this question was impending. and after ii
was manifest that the power in ques
ton would very probably have to be excr
cised That session adjourned without
taking any action on the subject be
President found it necessary to exercise
the power in question and did So The
regular session met and have been sitting
more than a month without making any
provision on the subject. Are they no,
estopped from asserting that their powers
on this question have been infringed by
the President?
l. The argument, therefore, seems to
leave an implied censure resting upon
Congress. / do not wholly ac9uiesce tha.
this should be co. / will briefly explain
the reason.
Upon inspecting the power under con
sideration-the power to suspend the ope'
ration OF the writ Of Habeas Corpus-it
becomes most manifest, that it is extreme.
ly difficult to place any limitation upon
the Presidents power. without impairing,
without perhaps hazarding the destruction,
of tho efficacy, of the power itself Under
any law that should leave any vitality In
the power, the President would have to
be invested with almost unlimited discre-
tion, as to the persons, and as to the mode
| ,,,o,,, aud hy which the powers was to