Wood County reporter. [volume] (Grand Rapids [i.e. Wisconsin Rapids], Wis.) 1857-1923, 1863-03-05

his Majessy's Privy Council or Secretaries
OF State, shall be detained In safe custody
| without bail or malnprise and the second
act indemnifies the ministers of the crown
from consequences of having made these
illegal arrests, and protects them against
all civil OR criminal prosecutions. And
rom that day to this, not single in
stance can be found in the history of En-
gland in which Parliament has ever exer-
cised the power of suspending the writ of
hG6eas corpus until after it had been in
point OF tact suspended by the crown, and
then what they do is to sanction and
adopt the acts OF the king or bis ministers,
and indemnify them against the conse-
quences of their proceedings.
1t will be perceived, therefore, that if
any argument is to be drawn from analogy
to the case of England, that argument is
strongly in favor of the position which l
take. 1t goes to show one thing very
clearly, that this power of suspension, to
| be operative and effectual, most be an act
Of the executive authority. Unless it is
exercised by the Executive, it can never
| be exercised at all; and the question
| which we are this day called upon to de.
| termlne is, not whether the power shall
be exercised by the President or by Con-
gress, but whether the power shall be ex-
erclsed at all, or whether it shall be strick-
en- from the Constitution altogether; for
| If 1t is only to be exercised by Congress, it
is dead letter. | admit that if Congress
had the power which is possessed by the
British Parliament, then there would be
no practical difficulty with regard to this
matter; for then Congress might do here
| what Parliament does there; it might
sanction anG adopt the acts OF the Presi-
dent, and indemnify him against the con-
sequences which might otherwise flow
from them. But, sir, Congress possesses
no such power.
The speaker introdrce various argu-
ments, which are legitimate and valid,
showing that it was never the design OF
Congress to restrict the suspension to that
body-such as the classification of the
provision in a particular section and the
fact that a proposition to authorize it's
suspension 10y the legislative branch, was
voted down in the Convention for adopt-
ing the Constitution. He turther argues
that if it was designed that Congress alone
should exercise the power, it would have
been so expressed.
think, sir, | have established that there
is nothing in the practice or in the theory
OF the British constitution there is moth
ing in the position which this clause occu-
pies in our Constitution there is nothing
III the history of this clause in its passage
through the Convention, and there is
nothing in the omission of all reference to
legislative power that can furnish any ar
gument In favor of this power being in
tended TO be a legislative power. And
now, MIR. President, 1t remains only to H.
qulre what Is the nature of this power g.
Is 1t an executive power or is it legiJi-
mate pt wer2 Ii it is an executive power,
then insist that the only possible con-
stractlon that can De put on this clause of
the Constitution, is that it was designed
! to give the power in question to the Pres
ident. In order tojudge of the nature of the
power we must ascertain when it is to be
exercised. 1t is to be exercised only in
two cases, rebellion and invasion. First,
IN case OF rebellion-nOt mere local Sc
ditiou, not instruction only, which is CD
position to some particular law, as the
whiskey Instruction for instance, but re-
belllon, which involves the overthrow of
the Constitution and Government Itself:
which is an opposition to all laws. Sec
ond, invasion-not merely foreign war,
bnt foreign war accompanied by invasion,
the tendency of which, in like manner,
would be the overthrow of the Govern
ment, Constitution, and laws.
Now, whose duty is it to preserve the
Government, protect the Constitution and
preserve the laws? The President, by his
oath of Office, sweacs that he will preserve.
protect and defend the Constitution of the
United States; and then it is made his
duty to "take care that the laws be faith
fully executed. Rebellion is resistance to
these laws. Rebellion is an ATTEMPT to
overthrow this consultation and Govern
ment. Who, then, is competent to decide
whether the exigency has arisen which
will justify the suspension of the writ of
hd6eGs corpus? Who but the President
alone2 Congress may not be in session
For nine months out of the twelve, every
other year, Congress is not in session /: and
yet the idea is that the trainers OF this
Constitution meant to confer upon that
body alone the power of suspending the
writ of habeas corpus. Suppose Congress
were in session, how could that body
know whether the exigency had arisen {?
How could Congress know whether the
execution of the laws had been resisted
They would have to depend upon the Pres
ident for the information upon which thew
were to act; and then while a bill for the
purpose of susPending the privilege of
! the writ of ha6eas corpus was making
its way through both Houses, every
individual engaged liz a conspiracy for the
overtime" of the Government might be
at distance of a Thousand miles from the
seat of Government. How utterly impos-
sible, then, would it be for Congress to
exercise such pcwer as this. This pow
er, admit, is high, transcendent power.
1t Is power which ought never to be ex-
erclsed except upon the most solemn, pres
sing, and urgent occasions. But, sir, it is
a power the exercise of which NAV be
absolutely essential to the very existence
OF the Government; and in order that it
should be eticacious. in order that it
should accomplish the end for which it is
designed, it must be exercised with the Ut
most promptitude and vigor. The slight
est delay may Illustrate entirely the objects
sought to be accomplished by it. The
idea, then, that power of this character,
which depends for its successful exercise
on the utmost possible promptness and
slacrlty, should be exercised by Congress
and not by the President, is a reflection,
1t seems to me, upon the wisdom of those
who framed this instrument; it is an i'm
parchment of their character which 1, for