Page:Suspension of Habeas Corpus during the War of the Rebellion.djvu/31

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484
[Vol. III.
POLITICAL SCIENCE QUARTERLY.

wards in his message to Congress he submitted all his acts to their judgment. They supported him as far as they could. A bill was passed August 16, 1861, making valid all his acts in regard to the army, navy and militia, and giving them the same effect as if they had been done under the previous authority of Congress.[1] About the same time a joint resolution was introduced in the Senate making valid his suspension of habeas corpus, but though much debated it never reached a vote.[2] Afterwards in December, 1862, the House of Representatives passed a bill indemnifying the President for previous suspensions of habeas corpus and giving him authority to suspend in the future.[3] The Senate would not agree to the clause making valid the previous suspension, and the bill finally passed both houses with that clause omitted and became known as the Habeas Corpus Suspension act of March 3, 1863. Both President and Congress, driven by the necessities of a state of rebellion, followed the English practice as closely as circumstances would allow. But there was this difference. If the President had violated the constitution, Congress could not make his acts valid. There is no power in Congress to excuse violations of the constitution. Even the elastic war powers cannot be stretched to that extent.

It might be well therefore if Binney's argument were the true one. It is the only one that, under the present wording of the constitution, can by any possibility give the power to the executive. It gave him during the Rebellion at least a claim of right, and was adopted and repeated in the speeches of all the Republican leaders. The habeas corpus clause as now understood stands in the way of the government's protecting itself. In such a case we want something more than a claim of right. Violations of the constitution demoralize the people and abate their reverence for the great charter; but violations will surely come if such provisions are to remain. Every man thinks he

  1. 12 U. S. Statutes at Large, 326.
  2. Introduced July 6, 1861, and debated at various times until August 6, of the same year, when the Senate adjourned.
  3. Introduced December 8, 1862.