CONGRESS, UNITED STATES. 



211 



bellion against the Government of the United States, 

 and during the continuance of such rebellion, and 

 within the limits of the district which shall be so un- 

 der the sway thereof, such limits to be prescribed by 

 proclamation, it shall be lawful for the President of 

 the United States, when in his judgment the public 

 safety shall require it, to suspend the privileges of 

 the writ of habeas corpus, to the end that such rebel- 

 lion may be overthrown : Provided, That all the pro- 

 visions of the second section of an act entitled u An 

 act relating to habeas corpus, and regulating judicial 

 proceedings in certain cases," approved March 3, 

 1863, which relate to the discharge of prisoners other 

 than prisoners of war, and to the penalty for refusing 

 to obey the order of the court, shall be in full force 

 so far as the same are applicable to the provisions of 

 this section : Provided further, That the President 

 shall first have made proclamation, as now provided 

 by law, commanding such insurgents to disperse : 

 And provided also^, That the provisions of this sec- 

 tion shall not be in force after the end of the next 

 regular session of Congress. 



Mr. Carpenter: "Mr. President, the ques- 

 tion is whether this section is constitutional. 

 My friend from Ohio (Mr. Thurman) suggests 

 to me in an undertone that the act which I 

 have read of 1795 does not provide for the sus- 

 pension of the habeas corpus. This is true. I 

 did not cite it for that purpose. I cited it 

 simply for the purpose of showing that a pow- 

 er which is by the Constitution delegated to 

 the Government in gross,, so to speak, not dis- 

 tributed among the departments, is to be regu- 

 lated by law under the last clause of the legis- 

 lative article conferring upon Congress its spe- 

 cific powers, and whether that be to raise an 

 army, to suppress an insurrection, or to sus- 

 pend the writ of habeas corpus, both powers 

 being conferred upon the Government and not 

 upon any particular department, the principle 

 of course is precisely the same. 



" The question now is whether this act be 

 constitutional. It will be conceded to be con- 

 stitutional if it specifies here a caste within the 

 provisions of the Constitution, and if it be 

 competent for Congress to delegate the power 

 to the President to suspend the writ when the 

 emergency does happen. Upon the last branch 

 of the subject I cited the act of 1795. Upon 

 the first branch, as to whether this makes a 

 case of insurrection, I refer my honorable 

 friends on the other side of the Chamber to 

 authorities which they cannot question, to the 

 decisions of all the Federal judges during the 

 fugitive-slave law days, to the charge to a 

 grand-jury by B. R. Curtis, published in the 

 Law Reporter, and the elaborate and perfectly 

 sound opinion of Justice Nelson to a grand- 

 jury in New York, reported in Blatchford's 

 Reports,' where both these eminent jurists 

 charged the grand-jury that if a number of 

 men combined together to resist the execution 

 of a general law, and assembled in force, that 

 is, in numbers, by force to prevent its execu- 

 tion, that was levying war against the United 

 States, and was high-treason. 



" Within those authorities the case specified 

 in this section is clearly a case of insurrection, 

 and that insurrection occurring and becoming 



patent to the Government, or to such officer 

 of the Government as Congress shall appoint 

 to execute this provision, it must be perfectly 

 competent and within the provisions of the 

 Constitution to enact that section. 



"I know that an ingenious and plausible 

 argument may be made against this power, 

 as there may be against any power and against 

 any act that was ever passed in the world ; 

 but I believe that this act, although it may be 

 conceded that it goes very near the extreme 

 limit of our power, is still within those limits 

 and that we have the constitutional power to 

 pass it." 



Mr. Thurman : " Mr. President, we are mak- 

 ing to-night a precedent the influence of which 

 may not cease as long as this Government 

 shall last. It is to be a precedent on the side 

 of liberty or on the side of despotism; and 

 that consideration is a sufficient excuse for me 

 for troubling the Senate with a few words in 

 reply to what has just been said. 



" The Senator from Wisconsin (Mr. Carpen- 

 ter) agrees with me that the power to suspend 

 the writ of habeas corpus is given to the Gov- 

 ernment and can only be exercised in pur- 

 suance of law. When he says that it is given 

 to the Government, I do not think he speaks 

 quite accurately, for the Government is com- 

 posed of three departments, legislative, exec- 

 utive, and judicial, and certainly it is in no 

 wise conferred upon the judicial department 

 to determine whether the privilege of this 

 writ shall be suspended or not; nor in any 

 proper sense can it be said to be conferred 

 upon the executive department of the Govern- 

 ment: for what is the executive department 

 of the Government? It is that department 

 which is charged with the execution of the 

 law. The Constitution is the highest law, and 

 the laws enacted by the legislative department 

 are the remainder of the body of the law, and 

 it is simply to execute these laws that the ex- 

 ecutive department is ordained and instituted. 

 So that in the nature of things the power to 

 decide whether the privilege of the writ shall 

 be suspended a power which requires the 

 exercise of judgment and of discretion, of voli- 

 tion must necessarily belong to the legislative 

 department of the Government. In its nature 

 it is not an executive power, for, as I have 

 said, the executive power is a power to exe- 

 cute the law. In its nature it is not a judicial 

 power, for the judicial power never comes in- 

 to exercise, as has been repeatedly decided by 

 the Supreme Court of the United States, until 

 there is a case, which means a plaintiff and a 

 defendant in a court of justice. So that it 

 necessarily follows that the power to suspend 

 the privilege of the writ is a legislative power. 



We are agreed upon this; but the Senator 

 from Wisconsin thinks it is a sufficient com- 

 pliance with the Constitution for Congress to 

 enact a law which authorizes the President to 

 suspend the privilege on the happening of 

 certain contingencies or of certain events, of 



