Page:Suspension of Habeas Corpus during the War of the Rebellion.djvu/9

From Wikisource
Jump to: navigation, search
This page has been validated.
462
[Vol. III.
POLITICAL SCIENCE QUARTERLY.

constitution shows strongly the intention of that body. Shortly after the convention met, Pinckney of South Carolina presented what he called "A plan of a Federal Constitution." The sixth article, which was concerned with the legislature, contained the following sentence:

The legislature of the United States shall pass no law on the subject of religion, nor touching or abridging the liberty of the press; nor shall the privilege of the writ of habeas corpus ever be suspended except in case of rebellion or invasion.

Habeas corpus was not mentioned again until three months afterwards, and about three weeks before the final adjournment of the convention. Pinckney was again its guardian and moved, not the adoption of his plan, but a number of propositions to be referred to the committee of detail. He gave the habeas corpus proposition the following form:

The privileges and benefits of the writ of habeas corpus shall be enjoyed in this government in the most expeditious and ample manner; and shall not be suspended by the Legislature except upon the most urgent and pressing occasions, and for a limited time not exceeding —— months.

Evidently, Pinckney intended the legislature to suspend. But it is important to observe that in his first motion he confined suspension to rebellion or invasion, and in his second to the most urgent and pressing occasions, and for a limited time. That is to say, in his second motion he left suspension to the discretion of the legislature provided that the suspension did not last longer than a certain number of months. If this last proposition had been adopted, our constitutional provision for habeas corpus might have been somewhat like England's; and of course, if such indefinite power to suspend was given, it was right to place it in the hands of Congress, and not in the hands of the executive. The meagre account which Madison has given of the convention's debates furnishes little or nothing more to guide us, until we find that a few days afterwards Gouverneur Morris disposed of the whole question. He moved that: