238 



CONGRESS, U. S. 



" I hold that there is no authority vested hy 

 the Constitution of the United States in the 

 President or any of his cabinet ministers to 

 make these arrests ; and whenever they exer- 

 cise such a power it is an act of usurpation 

 and an overthrow of the Constitution of the 

 country. The Constitution defines what are 

 the duties of the various departments of this 

 Government. The duties of the executive are 

 plainly marked out in the instrument. So it is 

 with the legislative power; so it is with the 

 judicial power. Upon each and every one of 

 these distinct bodies of the magistracy are con- 

 ferred separate and distinct powers which they 

 can legitimately exercise ; and whenever they 

 go beyond the powers prescribed in the Con- 

 stitution, they usurp an authority not given to 

 them by the law, and deserve and should re- 

 ceive the honest censure of every loyal man in 

 the country I mean of every man loyal to the 

 Constitution of the country. 



" Now, sir, I ask senators who claim that the 

 President and his cabinet ministers have exer- 

 cised this power rightfully, to point me to the 

 clause in the Constitution or the law that au- 

 thorizes those officials to arrest a citizen, a civ- 

 ilian. The President, as commander-in-chief of 

 the army and navy, may have the right, by vir- 

 tue of the laws passed to regulate the army and 

 navy, to make arrests of persons employed in 

 land and naval service ; but I ask senators to 

 show the law that authorizes him to make an 

 arrest of a citizen not connected with either 

 service. "Why, sir, even suppose the position 

 of the senator from New Jersey were true, that 

 the President has a right to suspend the writ 

 of habeas corpus, does it necessarily follow, af- 

 ter that suspension, that he has a right to arrest 

 whom he pleases? If so, I would not give a fig 

 for the liberties of this people. If it be so, any 

 President who is wicked enough and abandoned 

 enough to do it, may, ad libitum, overthrow 

 the liberties of this country." 



Mr. Fessenden, of Maine, rose to ask a ques- 

 tion of the senator, saying: "My question is 

 this : If he were at the head of the Govern- 

 ment, and he were satisfied in his own mind 

 that an individual, in a time like this, was about 

 to commit a crime, the consequence of which 

 would be exceedingly injurious to the Govern- 

 ment itself, and would strengthen the arm of 

 the rebellion, and there was no other way in 

 which he could prevent it, would he not pre- 

 vent it, would he not arrest the individual 

 without law, and hold him by the strong hand, 

 for the safety of the people ? " 



Mr. Powell, in reply said: "I will say to 

 the senator, that if I were the President (which 

 is not a supposablo case) I would by no act 

 violate the Constitution and laws of my coun- 

 try. If I thought that a man was about to do 

 anything wrong, and there was a law of the 

 land by which I could have him arrested and 

 punished, or placed under bonds for good be- 

 havior, I would have the law executed. If 

 there was no law to reach the case, and I 



thought the man meditated very great injury, 

 I think I would have a watch kept on him, and 

 prevent his committing the act, and then, at 

 the next session of Congress, I would recom- 

 mend the passage of a law for the punishment 

 of just such an offence. I would adhere to the 

 law." 



Mr. Fessenden replied: "The senator for- 

 gets one clause of my question, and that is that 

 there was no other way to prevent it." 



Mr. Powell, in answering, said : " The sena- 

 tor is supposing a state of facts that could not 

 exist." 



Mr. Collamer, of Vermont, now rose to ask 

 a question : " If a man cannot be unlawfully 

 imprisoned while the habeas corpus is in force, 

 when it is suspended may he not be impris- 

 oned unlawfully?" 



Mr. Powell in reply said : " If the writ of 

 habeas corpus is suspended, the party may be 

 held in prison either lawfully or unlawfully. 

 If he is in prison, having been put there law- 

 fully or unlawfully, the suspension of the writ 

 of habeas corpus only denies him the great re- 

 medial process by which he is taken before the 

 court, and the legality of his imprisonment in- 

 quired into by the court. That is all it does." 



Mr. Collamer: "Does the gentleman \vish 

 to be understood that the habeas corpus can 

 only be used for the purpose of inquiring 

 whether the process was legal ? " 



Mr. Powell : " No, sir ; it may be used to 

 inquire whether he is rightfully deprived of his 

 liberty ; whether he is confined by virtue of 

 legal process or not." 



Mr. Collamer answered : " No, sir ; ques- 

 tions of guilt or innocence are never tried on a 

 writ of habeas corpus" 



Mr. Powell continued: "In some classes of 

 cases, the guilt or innocence may be inquired 

 into. So far as the record shows guilt or inno- 

 cence, it is a proper inquiry." 



Mr. Collamer : " They require a jury." 



Mr. Powell: "Upon a habeas corpus, the 

 facts in the record which go to show the guilt 

 or innocence of the party are before the court, 

 and upon them they may decide whether he is 

 rightfully or wrongfully imprisoned. If from 

 the facts in the record it appears he is guilty, 

 he is rightfully imprisoned ; if innocent, he is 

 wrongfully imprisoned, and is let go free. In 

 the inquiry arising upon habeas corpus, the 

 guilf or innocence of the party, to some extent 

 in a certain class of cases, is necessarily looked 

 into." 



Mr. Collamer : " If a habeas corpus is 

 brought to relieve a man charged with mur- 

 der, does that habeas corpus enable the judge 

 or court, before whom it is brought, to try in 

 any way whether that man is guilty of the 

 murder or not? " 



Mr. Powell : " I am astonished that so good 

 a lawyer as the senator from Vermont should 

 ask such a question. We know that it is not 

 the function of a judge, befqre whom a prisoner 

 is brought on a writ of habeas corpus, to try 



