Richmond Whig. [volume] (Richmond, Va.) 1862-1865, 1864-04-14

go into discussions OF bow better measures might have
been obtained or how bad ones might have been avoid
ed. The whole is striking illustration of the evils at
tending first departures from prncple-the 'facilis
descensus Averno Error is ever the prolific source of
Our present financial endorsements had their
origin in bluOder at the beginning, but we must deal
with the present not the past.
Mr. Stephens next discussed the military act of the
last Congress- which he considered un
necessary irudciOus dangerous and hurtiul He then
PROCEEDED
cone now, to the last Of these acts of Congress-
The suspension Of the writ of kabeas corpus in certain
cases. This is the most exciting as it is by far the
important question before YOU Upon this depends the
queetou whether the courts shall be permitted to de-
eide upon the constuonaty of the late couscrpt act
should you submit that question to their decsor aud
upon also depend other great essential rights enjoyed
by freemen This act upon its face confers upon
the Presd mt the Secretary OF War, and the General
commanding in the TransM issssipp department. (the
latter acting under the control and authority of the
Presidency the power TO arrest and imprson any person
who may be simply charged with certain acts not all Of
them crimes under law; and this il to be done
without any oath affirmation alleging probable cause
to the guilt Of the party. Tbs Is attempted to be
done uLder that clause OF the Constitution which au-
thorzes Congress to suspend the privilege OF the writ
Of hGbeGs corpus in certain csses
In my judgment this is not Only unwise mpt liz and
unconstitutional but exceedingly dangerous to public
liberty unconstitutionality does not rest upon the
idea that Congress has not the power TO suspend
the privl 60 OF this writ upon the idea that the
power suspend il is implied one, that clearly
implied powers are weaker, Glass; and subordinate
to others positively and directly delegated
do not understand the Executive of this S ae to
put his argument against this ac. upon any such
grounds He simply states fact as it most clearly IT,
that the power 10 Suspend at all is implied power =
There is positive, direct power delegated to do t
The power however, is clear and clear only by impl-
cation The language of the Constitution that she
privilege Of the writ OF habeas corpus shall be
pended, unless when IN cases of rebellion or invasion
the public safety may require it" clearly expresses the
intention that the power may be exercised in the
stated; but il does so by implication only, Just as il
mother should say TO her daughter, you snal not 60
unless you ride Here the permission aud auth ~ 10
90 clearly given, though by inferenc, and implication
only. 1t is not positively and direcdy giver. This,
and this only unde stand the governor 10 mean wher
he speaks OF the power being implied He raises
no question to the existence Of the power its
lidty when rghtiully exercised, but he maintains
do that its exercise must be controlled By all other re-
srcions in the Constitution bearing upon lie rcse.
Two Of these ID De fou in The words accompany
ing the delegation. Il never be exercised eycep; in
rebellion or Invasion Other restrictions ere TO be
found in other parts of the Constutonin the amend.
ments to the Constitution adopted after the ratification
OF the words. as above quoted. These amendments
we're made is expressly declared in the preamble to
them, to add further dec.aratory and restrictive
clausesn TO prevent misconsruction abuse of the
powers previously delegated. To understand ali the
restrictions therefore, thrown around the exercise of
this power in the Constitution, these additional 'Ie
strctive clauses" must be read in oDuncton with the
original grant, whether that was MADE positively and
directly or by implication only. These nstruc IONS
among other things, declTe that "no person shall be
deprived Of hie liberty or property without due pro.
cess of law" and that the right of tho people to be
10, haiH m.
against unreasonable searches and sezures shall be
violated and no warrants shall issue but upon probabe
cause supported by oath affirmation and particu-
ry describing the place to be searched and the person
or thing to be seiZsd."
All admit that under the clause as it stands in the
original grant, with the restrictions there FORTH the
poT be rghtfully exercised only in cases of re-
billion or INVASION With these additional clauses put
in further Testr ctons to prevent the abuse OF paw
era previously delegated how is this clause conerring
the power TO supend the privilege OF she writ of ha
bsas corpus now be read In this way, and ia this
way only: The psVilege of the writ OF habeas cor
pus shall not be Suspended, unless when in ease OF
rebellion invasion the public safety may require it,"
And person "shall be deprived of life, liberty or
Property, without due process Of aS." And further
"rhe right Of the people to be secure in their person
houses pApsrs and tecs against unte sonsbe search
aud seizures shall not be volAted, and no warrants
shall issue but upon probable caus supported by oath
or affirmation and pLticulrly describing the place TO
be searched and The persons or th nss to be sezsd"
The attempted exercise OF the power to suspend the
privilege OF the writ OF habsas corpus 10 this act in
utter disregard in the very face and teeth of these re-
strictons much so as Like attempt in time Of pro-
found peace would be in disregard OF the restrictions
to cases of rebellion and invasion, the Constitution
was or gnal sdoped 1t attempts to provide for de-
prviug persons of "liberty without the process OF
Law" 1t attempts to annu and set at naught the great
constitutional "rgh" OF the people to DO secure in
their persons against unreasonable seizures" 1t at
tempts destroy aud annihate the bulwark of per-
sonal berry, lred in our great Chart to the hunbes
as well ss the highest that no warrants shall issue but
upon probable cause supported by oath or affirmation,
and particularly describing the person to be seized"
Nay, mo O. it attempts 10 change and transform the
distribution Of powers in our system OF government
attempts to deprive the judiciary department Of It's
appropriate and legitimate functions, and to confer them
upon the President the Secretary of War; and the gen
eral commanding the trans Mississippi Department or
rather confer them entirely upon the President FOR
those subordnaes named in the act hold their places at
his will, aud in under this set be governed
by his orders. This by the Constitution, can be
DONE Oars is not only government Of limited powers
but each department, legislative, executive judicial is
separate and distinct. The issuing Of warrants which
are nothing but orders for against civilians or
persons in civil life is Judicial function. The Presi-
dent under the Constitution has no power 10 issue any
such. As commsnder-in- chief of the land and naval
forces, aud OF the militia, when in actual service he
may order arrests for trials before cours-artal &C
cording to the rulss and articles of var. But he ia
clothed with such power those in the military
service and not subject to the rules and articles of war;
This act attempts to cothe him with judicial functions,
and in judicial Character, to do what no Judge under
the Constitution do-i-sue orders warrants for
arrest by which persons to be deprived of their
Liberty, Imprisoned, immured ia dungeons, it may be
without any oath affirmation, to the probable
guilt ofthe party accused or being charged with any the
in my judgment, cannot bs DONE Congress can confer
no sucn power upon Chief Magistrate There is no
such thing known in this country political warrants
or Iettres de cachet" This attempts to institute
this order Of things cdous TO ancestors and
so Inconsistent with constitutional liberty.
This act, therefore, is unconstitutional not because
Congress has not power to suspend the privilege Of the
writ Of habeas corpus but because they have no power
to do the thing aimed at in this attempted exercise Of
it. Congress can suspend the privilege of the writ