Page:Suspension of Habeas Corpus during the War of the Rebellion.djvu/15

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468
[Vol. III.
POLITICAL SCIENCE QUARTERLY.

tory. It does not say the judicial power may be vested, but it says it "shall be vested." Congress could not lawfully refuse to create courts of some sort; it could not lawfully refuse to create the means for the exercise of that power which the constitution says shall exist. To suppose that the obligation is not binding, but might at pleasure be declined, is to suppose that under the sanction of the constitution Congress may defeat the constitution. The constitution creates the judicial power, and declares to what questions it shall extend. Congress creates only the instruments which are to use that power; and when thus created the whole judicial power attaches to them, and cannot he diminished or changed by Congress.[1] By the constitution the judicial power extends to questions of personal liberty, and its exercise in that respect cannot be interfered with by Congress.

Congress, having the right to establish the tribunals, must give to them such an organization as will enable them to exercise completely the judicial power created by the constitution. A tribunal is not constituted unless it is endued with the active powers necessary to the exercise of its jurisdiction. The mere erecting of a court by name and the vesting of jurisdiction in it would amount to nothing. It must have the practical powers of bringing parties before it, enforcing its decrees, and issuing writs. It is idle to argue that the withholding or suspending of the writ of habeas corpus is an appropriate means of constituting a judicial tribunal. It is a caricature of argument to say, that Congress must create a court in which the whole judicial power is to vest, and at the same time may withhold from that court any of the instruments necessary to the practical exercise of judicial power. Accordingly, the act[2] which established our courts says, that they "shall have power to issue writs of scire facias, habeas corpus, and all other writs not specially provided for by statute which may be necessary for the exercise of their respective jurisdictions and agreeable to the principles and

  1. This reasoning is supported by the decision in Martin vs. Hunter, 1 Wheaton, 304. See also Story, Constitution (3d ed.), sec. 1590.
  2. Sept. 24, 1789.