246 



CONGRESS, U. S. 



power of suspending the privilege of the writ 

 of habeas corpus ; but if mistaken in this, I hold 

 that Congress has no authority to delegate to 

 the President the exercise of such a power." 



He then proceeded to explain his views at 

 much length, and thus stated his conclusions: 



"I think, sir, I have established that there is 

 nothing in the practice or in the theory of the 

 British constitution ; there is nothing in the po- 

 sition which this clause occupies in our Consti- 

 tution ; there is nothing in the history of this 

 clause in its passage through the Convention, 

 and there is nothing in the omission of all ref- 

 erence to legislative power that can furnish any 

 argument in favor of this power being intended 

 to be a legislative power. And now, Mr. Pres- 

 ident, it remains only to inquire what is the 

 nature of this power ? Is it an executive power, 

 or is it a legislative power ? If it is an execu- 

 tive power, then I insist that the only possible 

 construction that can be put upon this clause 

 of the Constitution is that it was designed to 

 give the power in question to the President. 

 In order to judge of the nature of the power, 

 we must ascertain when it is to be exercised. 

 It is to be exercised only in two cases, rebellion 

 and invasion. First, in case of rebellion not 

 a mere local sedition, not insurrection only, 

 which is opposition to some particular law, as 

 the whiskey insurrection for instance, but re- 

 bellion, which involves the overthrow of the 

 Constitution and Government itself; which is 

 an opposition to all laws. Second, invasion 

 not merely foreign war, but foreign war ac- 

 companied by invasion, the tendency of which, 

 in like manner, would be the overthrow of the 

 Government, Constitution, and laws. 



" Now, whose duty is it to preserve the Gov- 

 ernment, protect the Constitution, and execute 

 the laws ? The President, by his oath of office, 

 swears that he will preserve, protect, and de- 

 fend the Constitution of the United States ; and 

 then it is made his duty to ' take care that the 

 laws be faithfully executed.' Rebellion is re- 

 sistance to these laws. Rebellion is an attempt 

 to overthrow this Constitution and Govern- 

 ment. Who, then, is competent to decide 

 whether the exigency has arisen which will 

 justify the suspension of the writ of habeas cor- 

 pus f Who but the President alone? 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 framers 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 President for the information upon 

 which they were to act ; and then, while a bill 

 for the purpose of suspending the privilege of 

 the writ of habeas corpus was making its way 

 through both Houses, every individual engaged 

 in a conspiracy for the overthrow of the Gov- 



ernment might be at the distance of a thousand 

 miles from the seat of Government. How 

 utterly impossible, then, would it be for Con- 

 gress to exercise such a power as this ! This 

 power, I admit, is a high, transcendent power. 

 It is a power which ought never to be exercised 

 except upon the most solemn, pressing, and ur- 

 gent occasions. But, sir, it is a power the ex- 

 ercise of which maybe absolutely essential to 

 the very existence of the Government ; and in 

 order that it should be efficacious, in order that 

 it should accomplish the end for which it is de- 

 signed, it must be exercised with the utmost 

 promptitude and vigor. The slightest delay 

 may frustrate entirely the objects sought to be 

 accomplished by it. The idea, then, that a 

 power of this character, which depends for its 

 successful exercise on the utmost possible 

 promptness and alacrity, should be exercised 

 by Congress and not by the President, is a re- 

 flection, it seems to me, upon the wisdom of 

 those who framed this instrument ; it is an im- 

 peachment of their character, which I, for one, 

 am not willing to make." 



Mr. Saulsbury, of Delaware, followed on the 

 other side. The positions which he took were 

 that the President had not the power to sus- 

 pend the privilege of the writ, but that Con- 

 gress alone had the power. Reviewing the 

 rights of English subjects, and of the American 

 colonists, he inferred that the framers of the 

 Constitution did not intend to abridge their 

 liberties by conferring power upon one man to 

 do so, whenever he should adjudge the public 

 safety. should require it. 



He thus argued : " Never having known 

 the privilege of suspending a law enacted by 

 the legislative agents of the people, other than 

 as a legislative privilege, it is not to be pre- 

 sumed that they intended it should be other- 

 wise under the system of government which 

 they framed. In order to the existence of this 

 power in the executive, it must be shown pos- 

 itively that the Constitution confers it upon 

 him. Under the Constitution, and independent- 

 ly of it, the citizen is entitled to freedom from 

 imprisonment, unless in accordance with the 

 law of the land. The power to imprison is no- 

 where in the Constitution given to the Presi- 

 dent, either for or without cause. He can only 

 execute, not make the law. ' He shall take 

 care that the laws be faithfully executed,' not 

 that they shall not be executed, by reason of 

 his having assumed to suspend their execution ; 

 and he shall use all the means necessary and 

 proper, which have been conferred upon him 

 by the Constitution or by Congress, not by 

 means usurped by him independently of the 

 Constitution or act of Congress. He is to use 

 the means given to execute, not make the means 

 with which to execute. Suppose nothing had 

 been said in the Constitution about the suspen- 

 sion of the privilege of the writ of habeas cor- 

 pus, would the President have a right to sus- 

 pend the writ, which might, nevertheless, have 

 been provided for by act of Congress ? Surely 



