The dollar weekly bulletin. [volume] (Maysville, Ky.) 1862-1864, 1863-02-19
Corpus--1ne 6ounoarles OF 6a1o
cutive and Legislative Power.

ment, aud the first time. ! indeed, since the
Rektifpati0n Of the Stuarts from the British
throne) a question has risen whether the
power to suspend the writ of Habeas Corpus
is an Executive or Legislative act. 1t is true
that the British have jealousy guarded The
privilege of the writ as sacred and inviol-
able Tight, In defense of which they have
Ldiscrowned awhole race of Princes; il is true
that we, in America, have taken our idea oi
this riqhb fron British authority; 1t Is true
that this right has never been violated in
Britain or the United States (since the de-
thronement of the Stuarts 10 1889 until the
advent of the Lincoln Administration; and
it is equally true that J ohm Marshall, Chief
Justice Of the United States, decided, in a
case arising out of Burr's conspiracy, that the
suspension of the writ of Habsas Corpus was
Legislative, not an Executive act-that Is
that the privilege of the writ, and all the
writ auth orized and required, could only be
suspended, By Legislative authority, and that
only In time of invasion or rebellion. a
judicial decision on this question was hardly
necessary; for the question whether 1t was
legislative or an Executive power was toe
plain to produce discussion before this Ad-
ministration came into power. But since
the advent of the Lincoln Administration
the pretension has been set up, that the
power to suspend the writ is an Executive
power. This pretension has never been as
serted before, in England or the United
States, since the English revolution of 1888,
when William and Mary succeeded the last
of the Stuart race on the throne of Britain
But now, servile Attorney General of the
United States (Mr. Edward Bates has given
an opinion that the power to suspend the
privilege of the writ of Hdbeas Corpus, is dis.
tinctively an Executive, in contradistinction
from Legislative power. eve are inclined
to the opinion that, If Mr.. Bates had been
an Attorney at the time, he would have
willingly fled the pleas of the Crown in the
Court of Judge JeTries.) Mr.. Bates has
been sustained in his opinion by one or two
superannuated lawyers ofeformer respecta-
bility at the bar, and by many members of
Congress, Contractors. Jobbers, 60. But the
whole weight of their testimony on the sub.
ject would not balance feather against the
decision of the Supreme Court, or the opin-
ion of Chief Justice Marshall. 1t has been
enormously supposed in some quarters, that
Jefferson suspended the writ of Habeas Cor
puS. aud asked Congress to authorize it,
during the Burr conspiracy. He did neither.
Much as he was opposed to Burr and his
schemes, he resisted him and them only by
lawful means. It is true that Burr and
several of his alleged ,co-conspirators were
arrested by Army officers, in Mississippi or
Alabama, aud transported thence to Rich
mond, Va. But Jefferson knew nothing of
all this till it was done. When Informed of
1t, he promptly reported the facts to Con-
gress, for their action, not only not exercising
the power of suspendiug the writ of Rabeas
a law auth orizing him to do it. Without
President Jefferso1's Recommendation, how
ever, the Senate, acting on its own motion,
passed an act, authorizing the President to
suspend the writ of Habeas Corpus; thereby
acknowledging, as Chief ustlce Marshall
afterwards held, that the right to suspend
the writ was a Legislative and not an Execu-
tive power. 1t is due to historic truth to
state these facts; for the public mind has
lately been much abused by the false asser-
ton that Mr.. efferson either disregarded
the writ of Hobeas Coypns or sought to have
it suspended by act -of Congress. He did
D either. On the contrary he recognized the
validity of the writ, as right Of citizen
under State authority, in reporting to Con-
gress that one of the conspirators had been
released by virtue of it. And though the
Senate Of the United States passed an act,
the writ, without being request.
ed by President Jefferson), the House Ore
rejected It by large majority;
and the motion to reject it was made by Mr..
Jefferson's own son-in-law. The inference
from all this is too plain and palpable TO be
that is, that the Executive and
Judiciary in their early, pure AID best days
lin the days of ] Jefferson and MARSHALL
hat the power to suspend the writ of Habeas
Corpus is Legislative and not an Execu-
i've power.
But in the absence of all authority and all
,recedents and decisions on the subject, the
question would, at any Time when mems
minds were free from bias, be too plain for
Irgument. Tho Constitution says the priv
lege of the writ shall not be suspended ex-
.ept in time of invasion or rebellion. Now
What is this writP 1t is a process defined by
egislatiOn-by act of Congress. The right
0 The t0rit existed before the constitution, but |
hat instrument authorized Congress to pre-
cribe and regulate it as a remedial measure.