Page:Suspension of Habeas Corpus during the War of the Rebellion.djvu/19

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472
[Vol. III.
POLITICAL SCIENCE QUARTERLY.

is hard to understand. Gouverneur Morris was the author of the clause as we now have it, and a chance passage in one of his letters has raised a suspicion that that adroit gentleman intended the habeas corpus clause to be exactly what it is,—a masterpiece of vagueness.[1]

Besides Binney's argument there were three others which supported the President. One of them was by Attorney-General Bates.[2] He said, that in time of rebellion the President has a right to arrest and imprison such persons as he suspects of holding criminal intercourse with the enemy. He has this right because by his oath he has sworn to preserve, protect and defend the constitution; and Congress has confirmed him in this by those statutes which give him the use of the military power when the combinations are too powerful to be suppressed by judicial proceedings. It is his bounden duty, therefore, to put down insurrection, and Congress has given him the means and instruments which he may use at his discretion. If the insurgents assail with an army, he may find it best to use the army against them. It they employ spies and emissaries, he may find it necessary to arrest and imprison them. Having thus arrested and by this right, he is not bound to obey a habeas corpus issued to him by a court. The departments of government are independent of each other. Each has its own sphere. The President's duties are political; those of the courts are judicial. If in time of a rebellion the President arrests a man, it is a political act, not within the domain of the courts, and they cannot interfere with it. They cannot revise or reverse his political decisions. Can it be said, that after the President has conquered the insurgent army and arrested their emissaries, he is bound to

  1. "Having rejected redundant and equivocal terms I believe it to be as clear as our language would permit, excepting, nevertheless, a part of what relates to the judiciary. On that subject, conflicting opinions had been maintained with so much professional astuteness, that it became necessary to select phrases, which, expressing my own notions, would not alarm others, nor shock their self-love; and, to the best of my recollection, this was the only part which passed without cavil." Spark's Life and Correspondence of Gouverneur Morris, vol. iii, 322. See Third Part, The Privilege of the Writ of Habeas Corpus under the Constitution. By Horace Binney, page 21.
  2. 10 Opinions of Attorney-General, 74.