CONGRESS, U. S. 



253 



the Supreme Court of the United States, ' what- 

 ever may be the amount of the judgment.' 



u Am I not authorized, Mr. Speaker, in view 

 of these before unheard-of and most monstrous 

 provisions of a judicial bill, to say that, Avhile 

 proposing to promote justice, it is simply a mean 

 and cunning scheme, designed purposely to frus- 

 trate it ? 



" The measure before us, so far from follow- 

 ing the principle of the Force Bill, flagrantly 

 violates it. That Force Bill simply provided 

 for the impartial administration of law by al- 

 lowing, upon .certain prescribed conditions, the 

 transfer of jurisdiction. The principle it as- 

 serted was supremacy of law. Jt transferred 

 only such suits as were brought to question the 

 execution of a law. Its language is ' for acts 

 done under the revenue laws of the United 

 States or under color thereof.' 



" But here the monstrous power is asserted 

 of justifying the acts of the executive power 

 committed against law. The mere arbitrary 

 will of the President, or his agents ' acting un- 

 der color of his authority,' and despoiling the 

 citizen of his constitutional rights, is now for 

 the first time to be vindicated and approved by 

 Congress, that ought to feel insulted and out- 

 raged by such a proposition. 



"I need hardly add, sir, that I shall vote 

 against these measures." 



An extended debate followed on the policy 

 of the Government, at the close of which, the 

 amendment of the Senate was not concurred 

 in, and a committee of conference was appoint- 

 ed by the House. 



On the 27th of February, the Committee of 

 Conference, in the House, reported an agree- 

 ment that the Senate recede from their amend- 

 ment, and approve of the House bill, with some 

 amendments. The consideration of the report 

 was postponed to March 2d. 



In the Senate a similar report was made by 

 the Committee of Conference on the 2d of 

 March, and the bill was debated through a por- 

 tion of the ensuing night. 



Mr. Powell, of Kentucky, having the floor, 

 yielded it to Mr. Cowan, who wished to ask of 

 him a question. 



Mr. Cowan, of Pennsylvania, said : " I ask 

 whether it is possible that the legislature can 

 deny the privilege of the writ of habeas corpus 

 to any one ; whether from the very nature of 

 the thing, ex necessitate rei, it does not follow 

 that the legislature must delegate to somebody 

 the right to deny the privilege, whether it be 

 the party arresting, whether it be the judge 

 who issues the writ, or whether it be the cus- 

 todian in whose keeping the prisoner is ? It is 

 not possible that the legislature, in my humble 

 judgment, could say that the privilege shall be 

 denied in this case, or in that case, or in any 

 other case, because that would require them to 

 legislate in particular cases ; but are they not 

 obliged when they suspend the writ to declare 

 that somebody, either executive or judicial in 

 his functions, shall have the power in his hands 



to deny the privilege ? It may be, I see nothing 

 improbable in it, that they should delegate to 

 the judges the power to determine who should 

 be denied the privilege and who should not, or 

 they may delegate it to the President. But 

 even admitting that it is their function to de- 

 clare when the contingency shall happen that 

 the writ shall be suspended, still I ask if it 

 does not follow, and follow inevitably, that 

 either the judicial officer or the ministerial 

 officer shall apply the law to the exigency de- 

 clared by the legislature? " 



Mr. Powell replied : " I will answer the sen- 

 ator's question with great pleasure. If Con- 

 gress, in obedience to the power vested in it 

 by the Constitution, should suspend the writ of 

 habeas corpus, there can be no doubt that the 

 judiciary would obey the law. If you were to 

 pass such a law, it would be the duty of the 

 executive to see that the law, like every other, 

 was faithfully executed. That would be all 

 the President would have to do with the 

 matter." 



Mr. Cowan again asked : " Mr. President, al- 

 low me to request the attention of my learned 

 friend to the phrase in the Constitution. I ad- 

 mit that if the writ of habeas corpus were to be 

 suspended, the power would be delegated to the 

 judge to say when he should refuse the writ ; 

 but upon referring to the Constitutipn, it will 

 be found that the writ is not to be suspended, 

 but it is the privilege of the writ which is to be 

 suspended. Now, what is the privilege ? The 

 privilege is that great right which inheres as a 

 prerogative to every citizen to be discharged 

 upon bail, or to be delivered over to the civil 

 magistrate to be tried, and that privilege is in 

 the hands of his custodian, not in the hands of 

 the judge. As I understand it, in this repub- 

 lic, the writ can never be suspended. That is 

 not the language of the Constitution. The writ 

 must always issue; but the privilege may be 

 suspended, that is, the right to be delivered 

 over under the writ, or to be delivered upon 

 bail, or to be discharged. Now, then, the priv- 

 ilege only being suspended, in whose hands is 

 that privilege? Not in the judge's, certainly. 

 The judge has the writ ; he grants the writ ; 

 but it is upon the return of the writ that the 

 privilege comes in question, and it is a question 

 upon that return whether the petitioner, the 

 complainant, is entitled to the privilege. If the 

 privilege is suspended pro hoc vice, for that 

 turn, as to him, then I think it could properly 

 be delegated to the executive to suspend it, or 

 in other words, to his custodian." 



Mr. Powell replied : " I do not concede that 

 the language of the Constitution justifies the 

 senator in his construction. That language is 

 this : ' The privilege of the writ of habeas cor- 

 pus shall not be suspended unless when in cases 

 of rebellion or invasion the public service may 

 require it.' "Who has the privilege of the writ ? 

 Every person who is deprived of his liberty. 

 To whom does he apply for the writ ? To the 

 judges, the judiciary ; not to the executive. If 



