Page:Suspension of Habeas Corpus during the War of the Rebellion.djvu/5

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[Vol. III.
POLITICAL SCIENCE QUARTERLY.

sometimes brutally severe in the arrest. Such things are perhaps inevitable when a great rebellion is to be subdued; but we must regret that they happened in America.

The constitution contains one short paragraph about habeas corpus and not a word more:—

The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it.

This passage occurs in the first article which is devoted to the legislative power; and up to the time of the rebellion it was the general opinion that Congress alone had the right to suspend. When Lincoln and his Attorney-General claimed the power for the President, nearly everybody was surprised and many were shocked. They had supposed that the question was a settled one, When Aaron Burr and his conspiracy became so formidable as to suggest the suspension of habeas corpus, Jefferson, who was then President, submitted the whole matter to Congress, claiming no right for himself, and in the discussion which followed no one suggested that the President might exercise the power. When the state conventions were adopting the constitution the habeas corpus clause was never mentioned without it being taken for granted that Congress alone could suspend, and some thought that the debates of the convention which framed the constitution showed that such was also the opinion of the fathers of the republic. More conclusive than all, was the position of the clause itself, It occurs in the article devoted to the legislature and contains no words giving power to the executive, while the article devoted to the executive, where mention of the power would naturally be made if it belonged to the President, is entirely silent on the subject. The constitution uses the word suspend. No law can be suspended except by the legislature. The writ of habeas corpus is a law; for it is created by act of Congress, and therefore Congress alone can suspend it. In England, Parliament, and not the Crown, suspends the writ, and the makers of our constitution would naturally have followed the English custom,