CONGRESS, UNITED STATES. 



209 



New York moves to lay the bill upon the 

 table." 



The result was announced, as follows : 



YEAS Messrs. Alcorn, Bayard, Blair, Casserly, 

 Cooper, Davis of West Virginia, Fenton, Hamilton 

 of Maryland, Johnston, Kelly, Ransom, Saulsbury, 

 Spra<me, Stevenson, Tkurman, Trumbull, Vickers, 

 and West 18. 



NAYS Messrs. Ames, Anthony, Boreman, Cald- 

 well, Carpenter, Chandler, Clayton, Cole, Conkling, 

 Corbett, Edmunds, Ferry of Michigan, Flanagan, 

 Frelinghuysen, Logan, Morrill of Maine, Nye, Os- 

 born, Patterson, Pomeroy, Pool, Pratt, Eamsey, 

 Kobertson, Scott, Spencer, aud Windom 27. 



ABSENT Messrs. Brownlow, Buckingham, Cam- 

 eron, Cragin, Davis of Kentucky, Ferry of Connect- 



And following that : " 

 No bill of attainder or ex post facto law shall be 



rer, Schurz, Sherman, Stewart, Stockton, Sumner, 

 Tipton, Wilson, and Wright 29. 



So the motion was not agreed to. 



Mr. Vickers, of Maryland, said: "Mr. Presi- 

 dent, I do not propose to detain the Senate 

 long at this early hour of the morning. 



" I have examined it with care, have given 

 it some reflection, and have come to the clear 

 conclusion that the bill is unauthorized by the 

 Constitution. The Constitution reads : " 



The privilege of the writ of Jiabeas corpus shall not 

 be suspended, unless when in cases of rebellion or 

 invasion the public safety may require it. 



"It is conceded that there is no invasion. 

 Consequently, if there is no rebellion, there 

 is no authority for the suspension of this writ. 

 Paschal, in his ' Commentary on the Constitu- 

 tion,' says: " 



It would seem, as the power is given to Congress 

 to suspend the writ in cases of rebellion or invasion, 

 that the right to ^udge whether the exigency had 

 arisen must exclusively belong to that body. 



"And he refers to Martin vs. Mott, 12 

 Wheaton, 19 ; and Judge Story's Commen- 

 taries, 1342. We have here a decision of the 

 Supreme Court of the United States and the 

 Commentaries of Judge Story, asserting that 

 Congress has no right to delegate this power 

 to another. If the Supreme Court is any au- 

 thority with the Senate, if Judge Story's Com- 

 mentaries are to have any weight with this 

 body, I do not see how we can vote to confer 

 upon the President the authority which is ex- 

 clusively its own. 



"This power can only be exercised when 

 the exigency arises. Who is to judge of the 

 existence of the contingency when the power 

 is to be brought into operation ? Congress. It 

 is found among the legislative powers of Con- 

 gress. The very clause that precedes it reads : " 



The migration or importation of such persons as 

 any of the States now existing shall think proper to 

 admit shall not be prohibited bv the Congress prior 

 to the year 1808, etc. 



"And then follows the clause we have 

 under consideration : " 



The privilege of the writ of Jialeas corpus shall 

 not be suspended, unless when in cases of rebellion 

 or invasion the public safety may require it. 



VOL. xii. 14 A 



" It is among the legislative powers of Con- 

 gress, and belongs exclusively to it. It is im- 

 possible, from the nature of the power, that it 

 can be conferred upon another. It is one of 

 the most important in the Constitution, per- 

 haps the most important to be found in that 

 instrument. It is a delicate and a dangerous 

 power, by which the liberty of the citizen may 

 be taken from him without warrant, without 

 any authority shown, and he imprisoned with 

 no redress. He may lie in prison and be de- 

 prived of his liberty without the means of in- 

 quiry into the cause of his commitment. It 

 is the most dangerous power that can be con- 

 ferred or exercised. 



"Alexander Hamilton, writing upon the 

 subject of the Constitution when it was sub- 

 mitted to the people for their consideration 

 (and his opinions must have had great weight 

 with the community to whom he addressed 

 his publications), comparing the proposed 

 Constitution of the United States with the 

 constitution of the State of New York, speaks 

 of the several provisions in the Constitution 

 as follows : " 



It may well be a question whether these are not, 

 upon the whole, of equal importance with any which 

 are to be found in the constitution of this State. 

 The establishment of the writ of habeas corpus, the 

 prohibition of ex post facto laws, and titles of nobil- 

 ity, to which we have no corresponding provisions 

 in our constitution, are perhaps greater securities to 

 liberty than any it contains.. The creation of crimes 

 after the commission of the fact ; or, in other words, 

 the subjecting of men to punishment for things, 

 which, when they were done, were breaches of no 

 law, and the practice of arbitrary imprisonments, 

 have been in all ages the favorite; and mos-t formi- 

 dable instruments of tyranny. 



" The observations of the eminent commen- 

 tator in reference to the latter are well worthy 

 of recital: " 



To bereave a man of life T or by violence to con- 

 fiscate his estate without accusation or trial, would 



tism as must 



at once convey the alarm of tyranny throughout the 

 whole nation; but confinement of the person, by 

 secretly hurrying him to jail, where his sufferings 

 are unknown or forgotten, is a less public, a less 

 striking, and therefore a more dangerous engine of 

 arbitrary government. 



" As a remedy for this fatal evil, he is every- 

 where peculiarly emphatic in his encomiums 

 on the habeas corpus act, which in one place 

 he calls * the bulwark of the British Constitu- 

 tion/ 



" Before this writ can be suspended there 

 must be facts or evidence laid before the 

 power that is to suspend it. These facts and 

 this evidence must be considered and examined. 

 There are thought, deliberation, judgment to 

 be exercised, and there is discretion after 

 the facts are exhibited and collated. There 

 must be a sound discretion whether the writ 

 shall issue or not; and was it ever known 

 that a discretionary power could be transfer- 



