Year: 1861

sion of the writ. he claimed, on his part, no
power to suspend it-but communicated his
opinion to Congress- with all the proofs in
his possession, in order that Congress might
exercise it's discretion upon the subject, and
determine whether the public safety required
! it. And in the debate which took place
upon the subject, no one suggested that
Mr.. Jefferson might exercise the power him
self, if, in his opinion, the public safety re-
quircd it.


Having therefore regarded the question
as too plain and too we'll settled to be open
to dispute, if the commanding officer had
stated that upon his own responsibility, and
in the exercise of his own discretion he re-
fused obedience to the writ, I should have
contentcd myself with referring to the clause
in the constitution, and the construction it
received from every jurist and statesman of
that day, when the case of Burr was before
them. But being thus officially notified
that the privilege of the writ has been sus-
pended under the ORDERS and by the authori-
ty of the President, and believing, as do,
that the President has exercised a power
which he does not possess under the consti-
tuition, proper respect for the high office
he fills requires me to state plainly and fully
the grounds of my opinion, in order to show
. that have not ventured to question the
legality of this act without careful and
deliberate examination Of the whole subject


The clause in the constitution which au-
thorizcs the suspension Of the privilege of
the writ of habeas corpus is in the 9th Sec
tion Of the first article


This article is devoted to the legislative
department of the United States, and has
not the slightest reference to the Executive
department.. 1t begins by providing ''that
all Legislative powers therein granted shall
be vested in a Congress of the United States,
which shall consist of Senate and House
of Representatives" And after prescribing
the manner in which these two branches Of
the legislative department shall be chosen,
it proceeds to enumerate specifically the
legislative powers which it thereby grants,
the Legislative powers which it expressly
prohibits, and, at the conclusion of this
specification, a clause is inserted, giving
Congress ''thc power to make all laws which
may be necessary and proper far carrying
into execution the foregoing powers, and all
OohOi po"Clo fCStCu ny tuC COuStlGutIOu III
the government of the United States Or in
any department or Office thereof. -'~-


The power of Legislation granted by this
latter clause is by its words carefully con-
fined to the specific objects before enumera-
ted. But as this limitation was unavoidab-
ly somewhat indefinite, it was deemed ncces-
sary to guard more effectually certain great
cardinal principles essential to the liberty
of the citizen, and to the rights and equality
of the States, by denying to Congress, in
express terms, any power of legislating over
them. 1t was apprehended, it seems, that
such legislation might be attempted under
the prctext that it was necessary and proper
to carry into execution the powers granted;
and it was determined that there should be
no room to doubt, where rights of such vital
Importance were concerned, and accordingly
this clause is Immediately followed by an
enumeration of certain subjects, to which
the power of legislation shall not extend !;
and the great Importance which the trainers
of the constitution attached to the privilege
of the writ of habeas corpus to protect the
liberty of the citizen, is provided by the fact
that its suspension. except in cases of inva-
ololl lS uISU LII lIlC llcU VI plO-
hibited powers-and even in these cases the
power is denied, and its exercise prohibited,
unless the public safety shall require it. 1t
is true that in the cases mentioned, Congress
is Of necessity the judge of whether the pub
lie safety does Or does not require it. and
their judgment is conclusive. But the in
PRODUCTION of these words is standing ad-
monition to the legislative body of the dan
ger Of suspending it, and of the extreme
caution they should exercise before they
give the Government Of the United States
such power over the liberty of citizen


It is the I'd Article of the constitution
that provides for the organization of the
Executive department, and enumcrates the
powers conferred on it and prescribcs its
duties. And if the high power over the
liberty of the citizens now claimed was in
tended to be conferred on the President it
would undoubtedly be found in plain words
in this article. But there is not word in
it that can furnish the slightest ground to
justify the exercise of the power.


The article begins by declaring that the
Executive power shall be vested in a Prcsi-
dent of the United States of America, to
hold his Office during the term of four years
and then proceeds to prescribe the mode of
election and to specify in precise and plain
words the powers delegated to him and the
duties imposed upon him. And the short
term for which he is elected, and the mar
row limits to which his power is confined,
show the jealousy and apprehensions Of fu-
turc danger which the framcrs of the con-
stitution felt in relation to that department
of the government-and how carefully they
withheld from it many of the powers belong
ing to the Executive branch of the English
government which were considered as dan
gcrous to the liberty of the subjcct-and
conferred (and that in clear and specific
terms) )those powers only which were deemed
essential to secure the successful operation
of the government.


He is elected, as I have already said, for
the brief term of four years, and is made
personally responsible, by impeachment, for
malfcasaucc in Office He is from necessity