Page:Suspension of Habeas Corpus during the War of the Rebellion.djvu/13

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466
[Vol. III.
POLITICAL SCIENCE QUARTERLY.

although he differed from Binney in regard to the department to which the grant was given. Most of the pamphleteers who answered Binney attacked him at this point. They took the ground that if there had been no habeas corpus clause Congress would have had the unlimited right to suspend, and therefore there was no need of reading a grant into the clause, which, as its words implied, was a restriction and nothing more. If it can be shown that the clause is a restriction without a grant, it is at once fatal to Binney's whole chain of reasoning. For if the power to suspend could exist without the clause it would be an unlimited power, and no one would think of arguing that the convention would have given it to the President. In fact, one of Binney's own arguments was that if the power was unlimited it would be dangerous to give it to the President, and that the clause gave it to him because its use was strictly limited to the conditions of rebellion and invasion. If the constitution without the clause gives an unlimited power to some department to suspend, and the clause is simply a restriction on that power, the department intended to wield the power and to be subject to the restriction can be none other than Congress.

One of the reviewers, Judge Nicholas of Kentucky, put the question thus:[1] Suppose, said he, the constitution had no habeas corpus clause and was entirely silent about the writ and its suspension, where then would be the power to suspend? It would be of course with Congress. Congress would have untrammelled discretion over the writ and could suspend it or repeal it out of existence. It was this full power, this full discretion, which the convention intended to restrain, and accordingly they made the habeas corpus clause restrictive. It does not grant power to suspend, for Congress had that already; but it says that the privilege shall not be suspended except in certain cases. The words of the clause are entirely restrictive and contain no implication of a grant. They presume the existence of something which they restrain. Moreover, as was pointed out by Randolph in the Virginia convention, Congress was

  1. Habeas Corpus. The Law of War and Confiscation. By S. S. Nicholas, Louisville, 1862.