CONGRESS, U. S. 



247 



not ; and why ? Because such act, being the 

 act of the legislature, could only be suspended 

 by an act of legislation. Can the provision of 

 the Constitution that the privilege of the writ, 

 which the Constitution contemplated the Con- 

 gress would provide, shall not be suspended 

 unless in certain cases, possibly be regarded as 

 conferring a power on the President, and on no 

 one else, to suspend ? If the Constitution had 

 been silent in reference to the suspension, Con- 

 gress might have passed the bill providing for 

 issuing the writ or not, as they deemed proper ; 

 and having passed it, they could have repealed 

 or suspended it at pleasure. Does the fact that 

 it is provided that it shall not be suspended un- 

 less in case of rebellion or invasion deprive 

 Congress of the power of suspension in the case 

 of invasion and rebellion the cases where sus- 

 pension is not prohibited and confer such 

 power on a coordinate branch of the Govern- 

 ment, which, but for those restrictive or pro- 

 hibitory words, no one contends it would have 

 possessed ? 



" It will not be denied that in England, Par- 

 liament alone can suspend or legalize the de- 

 nial of the privilege of this writ. But it is 

 contended that here, under our Constitution, 

 the act of suspension is executive in character, 

 and not legislative, The advocates of this 

 view of the question contend, in the language 

 of Mr. Horace Binney, that, ' the power to 

 imprison, and to deny or delay discharge from 

 imprisonment, is - an executive power,' and 

 that 'the warrant of arrest, with the order 

 that the party's privilege be denied for a sea- 

 son, is suspension under the Constitution.' 

 Here is the assumption upon which the whole 

 argument is based. Has the President the 

 authority under the Constitution to arrest the 

 citizen for any cause whatever, unless that 

 power is given in the clause relating to the 

 suspension of the privilege of the writ of habeas 

 corpus? None whatever; because it is not 

 among the powers conferred upon him in the 

 Constitution, and because it is expressly pro-, 

 vided therein that no 'person shall be de- 

 prived of his liberty without due process of 

 la\v.' Due process of law relates to arrest as 

 well as to trial. Arrest cannot be made except 

 upon warrant, supported by affidavit, any more 

 than can conviction be had except upon trial 

 by jury. The suspension of the privilege of 

 the writ relates to a person legally imprisoned, 

 but confers no power to imprison contrary to 

 law. The advocates of executive despotism 

 argue in a circle. Their argument is nothing 

 more nor less than this : the President may 

 arrest because he has power to suspend, and 

 he may suspend because he has power to ar- 

 rest. 



" The support of the hypothesis of the power 

 in the President to suspend, as contended for 

 by Mr. Binney, is assumption, and assumption 

 alone. He assumes not only that ' the power 

 to imprison and to den/ or delay a discharge 

 from imprisonment is an executive power,' 



but necessarily, to make his argument consist- 

 ent, that this executive power is with the 

 President. The assumption is without war- 

 rant, from the fact, as we have seen, that the 

 President is not by the Constitution authorized 

 to arrest any one, the right to arrest being 

 based upon affidavit and warrant, not of mere 

 motion. The power to imprison is only ex- 

 ecutive in the sense of executing process, and 

 the power to deny or delay discharge rests not 

 in the volition of the person imprisoning, or 

 having the custody of the prisoner, but in the 

 judgment of the judge or court to whom ap- 

 plication for release is made as to the sufficien- 

 cy of the warrant when the privilege of the 

 writ is not suspended. When suspended, the 

 power to delay or deny a discharge rests upon 

 the fact of such suspension by virtue of the 

 rightful authority to suspend. The question, 

 therefore, remains, notwithstanding the as- 

 sumption of Mr. Binney, who is the depositary 

 of this power? To support his first assump- 

 tion of the power to suspend in the President, 

 Mr. Binney further assumes that ' all the con- 

 ditions of the exercise of the power described 

 in the habeas corpus clause are of executive 

 cognizance, that is to say, rebellion or invasion, 

 and the requirement of the public safety in 

 time of either.' What is this but assuming 

 what requires proof? The right to determine 

 whether the public safety requires the suspen- 

 sion rests necessarily with the depositary of 

 the power. To assume that the President is 

 to determine this fact is to assume the matter 

 in controversy. ' No legislative act is neces- 

 sary or proper,' says the same authority, ' to 

 give the cognizance of these facts to the ex- 

 ecutive.' So to say in reference to the 're- 

 quirements of the public safety,' is still to as- 

 sume, not to prove. 



" But to follow the argument. It is said that 

 ' no act of Parliament has e.ver been passed in 

 England, or has been proposed in Congress, to 

 take away or abridge the executive power in 

 regard to these facts.' Why not? Because 

 no such executive power existed, as is further 

 evidenced from the fact that the acts passed 

 by Parliament, or proposed in Congress, were 

 acts of suspension or proposed suspension by 

 those bodies themselves. If the executive had 

 the power independently of the act of Parlia- 

 ment or Congress, passed or proposed, where 

 was the necessity of passing or proposing such 

 acts ? To continue : Mr. Binney says : 



All the acts of Parliament which deprive persons of 

 the right to bail or trial in derogation of the habeas 

 corpus act of Charles II. leave this power and discre- 

 tion to the crown. 



"If by the expression, 'leave this power 

 and discretion to the crown,' is meant confer 

 upon or confide to the crown this power and 

 discretion, the phrase is intelligible and argu- 

 mentative ; but if it is thereby meant that 

 these acts of Parliament do not take away this 

 ' power and discretion ' from the crown, it ia 

 an admission that the ' power and discretion ' 



