248 



CONGRESS, U. S. 



are subject to the authority of Parliament to 

 remove them from the crown. If, however, 

 it is meant that the ' power and discretion ' 

 remain where they were, notwithstanding the 

 acts of Parliament, the point in controversy is 

 assumed and not proved, and makes the acts 

 of Parliament useless things. Again he says: 



They cannot be taken away by Congress without 

 invading the constitutional limits of the executive 

 office. 



" Not if they pertain to the executive office. 

 Do they ? This, again, is the point in dispute. 

 Again he says : 



They cannot be given by Congress to the executive 

 without supererogating what the Constitution gives. 



"Assumption again, not proof, that the Con- 

 stitution gives this power to the President. 



"Again, says Mr. Binney: 



The power to suspend the privilege of the writ is 

 moreover inseparably connected with rebellion or in- 

 vasion, with internal war. 



" Not at all. For although the privilege can- 

 not be suspended unless there be rebellion or 

 invasion, yet both or either of these may exist, 

 and the suspension be unauthorized. The 

 power to suspend is inseparably connected with 

 the requirement of the public safety in time of 

 rebellion or invasion, and with it alone, for 

 either or both rebellion and invasion may ex- 

 ist, and the public safety not require the sus- 

 pension. Again he says: 



The direction of such a war is necessarily with the 

 executive. The office cannot be deprived of it. It is 

 the duty of the office, in both its military and civil as- 

 pects, to suppress insurrection and repel invasion. 



"Granted; but by what means? By those 

 granted by the Constitution and conferred by 

 Congress. Is the power to suspend the privi- 

 lege of this writ granted by the Constitution ? 

 This is the matter in controversy. It must be 

 proved, not assumed. Again, says the same 

 writer : 



The true character of every act of Parliament in 

 this relation, and of the only bill that has ever been 

 proposed in Congress, has been executive, and so it 

 must be. 



" If by this is meant that the design of every 

 such bill has been to confer power upon the 

 executive, or those acting under his authority, 

 to detain in custody persons legally arrested, it 

 is true, otherwise it is not. To say that the 

 character of an act of Parliament or of Con- 

 gress is executive is an absurdity. It can only 

 be legislative. It declares what law is or shall 

 be. It cannot execute either judgment or 

 power. lie again remarks : 



The only aspect in which an act of Congress to this 

 effect can be regarded as legislative is as the grant or 

 creation of authority to detain against the writ ; but 

 this is supererogation, because the Constitution gives 

 it. 



" Again, this is the assumption of the very 

 matter in dispute. 



" I have thus far, Mr. President, considered 

 the question, has the President the right to 

 suspend the privilege of the writ of habeas cor- 

 pus as presented in the argument of Mr. Bin- 



ney, because that argument is the fountain of 

 justification to him, most generally, if not ex- 

 clusively, relied upon by his friends? It is, in 

 fact, the source from which the honorable sen- 

 ators from Indiana and New Jersey, who have 

 attempted the only legal defence of the ex- 

 ecutive in this regard during this session, have 

 drawn their materials." 



Mr. Collamer, of Vermont, expressed the 

 opinion that no bill should be passed and sent 

 to the President for approval, in which it was 

 necessarily implied that his decision relative to 

 the suspension of the privilege of the habeas 

 corpus was wrong. It would be asking him to 

 approve a law which declared that he had done 

 that which he had no authority under the Con- 

 stitution to do. " Is that common courtesy ? 

 Can we get along with the Government in that 

 way?" 



He then passed to a consideration of the pro- 

 positions before the Senate, the first of which 

 was the bill under discussion, and the other 

 a bill from the House, to indemnify the Presi- 

 dent ( see page 241 ) for suspending the 

 privilege of the habeas corpus, and acts done in 

 pursuance thereof. The objections to the first 

 he stated as above ; and the latter he regarded 

 as an act of oblivion, such as are passed occa- 

 sionally by the British Parliament. This he 

 considered as of doubtful constitutionality, and 

 thus proceeded : " Then I may be asked, what 

 would you do? I would not undertake to 

 smother up judicial inquiry*at all. I do not 

 think it necessary ; neither do I think we Lave 

 the power to do it, if it was necessary. It may 

 become necessary to regulate judicial proceed- 

 ings, to adapt them to the occasion which arises, 

 and to furnish the remedies which are needed ; 

 but we should not say that a law shall be pass- 

 ed to make that lawful which was unlawful ; 

 we should not say in effect : ' Having done a 

 thing which was not authorized by tlie Consti- 

 tution, we tell you now that the courts shall 

 never inquire into it all ; we are afraid to have 

 it inquired into any way ; and they, in relation 

 to the private claims of individuals, shall be 

 ousted of jurisdiction in relation to them en- 

 tirely.' Sir, in my judgment, that is very bad 

 policy, very bad statesmanship, and of ex- 

 tremely questionable constitutionality. 



" Now, Mr. President, I propose that every 

 person sued for any act done under the execu- 

 tive of the United States, by order of the Pres- 

 ident, during this rebellion, if he is sued iu any 

 State court, may, like the citizen in the case 

 just stated, remove that case from the State 

 court into the Circuit Court of the United 

 States. I believe we have a right so to legis- 

 late. I have no doubt on that point. In the 

 first place, the occasion now requires that to be 

 done. In the next place, if gentlemen will 

 look at the case of Cohen vs. Virginia the case 

 which settles the construction of the twenty- 

 fifth section of the Judiciary Act they will 

 find that in the opinion of Judge Story in that 

 case, the court held that the United States, by 



