254 



CONGRESS, U. S. 



you suspend the privilege, and an individual 

 should make application to the judge, the law 

 being suspended, the judge would not grant 

 him the privilege of the writ. That is the way 

 I construe it. Certainly the executive has no- 

 thing to do with it. When you put your law 

 upon the statute book suspending the privilege 

 of the writ of habeas corpus, it is the duty of 

 the executive to see that, as every other law, 

 faithfully executed. Apart from that the Presi- 

 dent has nothing to do with the writ of habeas 

 corpus.' 1 ' 1 



Mr. Cowan : " Mr. President, is it not in the 

 breast of the custodian ? Even suppose the 

 privilege be suspended, is it not in his breast 

 to waive the statute ? Could he not come for- 

 ward, and bring the body of the prisoner, and 

 say to the judge, ' Here he is; dispose of him 

 as you see proper ; I will abide your judg- 

 ment ; ' showing that the privilege is in his 

 hands, the privilege under the law ? But if he 

 deny the privilege, if he refuse to obey the 

 mandate of the writ, that is what I understand 

 in the privilege being suspended, not the writ. 

 The writ issues, because non -constat that the 

 custodian may not agree to deliver upon the 

 writ, and the writ must be issued in order to 

 know whether ho chooses to avail himself of 

 the suspension by the statute, because it is not 

 in all cases to be suspended. Nobody would 

 pretend, I suppose, that the privilege was to be 

 suspended in all cases. It is only in such cases 

 as affect the matter in hand ; that is, the rebel- 

 lion or the invasion, or in such cases as would 

 endanger the public safety. Of that the legis- 

 lature judge. They judge of the general con- 

 tingency, and the custodian judges of the par- 

 ticular one." 



Mr. Pow.ell : " When Congress suspends the 

 privilege of the writ of habeas corpus, it de- 

 prives the party of the privilege of that writ. 

 Who are to administer the laws? The judges. 

 When a man applies to a judge for the writ, the 

 judge cannot grant it, if the privilege is sus- 

 pended by law. He will say, ' No, sir, the law 

 allowing you the privilege of that writ ' for 

 he only has the privilege by virtue of the law 

 'is necessarily suspended; Congress having 

 suspended the privilege of the writ, we must 

 deny you that privilege which you had before 

 that action of Congress.' 



" But the honorable senator thinks it cannot 

 be done in all cases. I had supposed that no 

 legislative body on the earth would ever at- 

 tempt to suspend it in all cases, or to authorize 

 anybody else to do so ; but if the senator will 

 look at this bill closely, he will find that it pro- 

 poses to allow the President to suspend the 

 writ in all cases. The language is, ' the Presi- 

 dent of the United States, whenever in his 

 judgment the public safety may require it, is 

 authorized to suspend the privilege of the writ 

 of habeas corpus in any case throughout the 

 United States or any part thereof.' The power 

 conferred upon the executive by this bill is not 

 confined to a class of cases which may arise in 



the country in its present disturbed condition, 

 such a class of cases as would endanger the 

 public safety. If this bill should become a law, 

 and shall be held to be constitutional, it will 

 allow the President to suspend the writ in any 

 case whatever, whether a party be charged 

 with treasonable practices, with aiding or abet- 

 ting the enemy, or with petty larceny, or any 

 description of theft. ' In any case,' is the lan- 

 guage. There is no limitation upon it. If this 

 bill pass and shall be held to be constitutional, 

 it will authorize the President to suspend it in 

 the case of a parent who applies for the writ to 

 relieve his infant child from the custody of an- 

 other. He may suspend it in the case of a man 

 charged with petty or grand larceny, or with 

 manslaughter, murder, or any other offence 

 known to the law, as well as for treason, or 

 aiding or abetting the enemy. The senator 

 from Pennyslvania thinks nobody would think 

 of suspending it in all cases. Here it is pro- 

 posed to clothe the executive with the power 

 to suspend it ' in any case,' and consequently 

 he can carry it to all cases. This is the start- 

 ling power you propose to confer upon the ex- 

 ecutive. What, sir, if a member of the Senate 

 should be arrested upon any charge, or com- 

 mitted to jail, without having committed any 

 offence, upon suspicion, the President could 

 say upon that suspicion, ' That is a case, and as 

 to it I will suspend the writ of habeas corpus? 

 Sir, I think there never was before an attempt 

 to confer such a power on any magistrate by 

 law. 



" Mr. President, I do not regard this matter 

 of the habeas corpus so lightly as some others. 

 I do not believe that the writ of habeas corpus 

 should ever be suspended where your courts 

 are open, and where you have virtuous and up- 

 right judges. I think the danger to the liberty 

 of the citizen is much more than the danger to 

 the public liberties, provided the courts are 

 upright, honest, and just, and are open. If 

 you arrest a man and he is released, if he does 

 anything wrong you can arrest him again." 



Mr. Cowan further said : " The language of 

 the Constitution is somewhat peculiar as well 

 as precise; it does not warrant the suspension 

 of the laws relating to writs of habeas corpus, 

 therefore those laws remain intact just as before 

 in every State of the Union, not to be repealed 

 or suspended under any circumstances, even in 

 cases of rebellion or invasion. Nor is it said 

 that the writ can be suspended. No judge or 

 court having jurisdiction dare refuse it to the 

 suit of the citizen ; it must issue in all cases, 

 and at all events, when it is properly demanded. 

 It can hardly ever happen that it would be 

 either necessary or proper to suspend the writ 

 of habeas corpus, because if the invasion or re- 

 bellion has left either courts or judges to issue 

 the writ, there will always be many cases prop- 

 erly within their cognizance and jurisdiction. 

 The writ must then issue in order that the re- 

 turn may indicate to the judges whether or not 

 the person claiming the privilege is or is not 



