Page:Suspension of Habeas Corpus during the War of the Rebellion.djvu/10

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No. 3.]

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

With the substitution of the word when for where, which was probably done by the committee on style, this is the clause as it now stands in the constitution. The convention rejected Pinckney’s English view. They limited suspension to conditions which were of executive cognizance, and therefore the reference to Congress became unnecessary, and was abandoned. All reference to the legislature is left out, and as moved by Morris and adopted by the convention this clause was not part of the legislative article, but an amendment to the fourth section of the eleventh article, which treats of the judiciary. Subsequently the committee on style and arrangement placed it in its present position. The duty of that committee was not to change the meaning of any phrase; they were confined strictly to such work as their name implies. By placing the provision in the judiciary article, the mover and the convention may have intended to admonish the judges of a restraint upon their power over the writ. But however that may be, certain it is, that they must have intended to expressly negative Pinckney's idea of a suspending power in Congress.

The committee on style probably placed the clause in the ninth section of the first article because that section is restrictive throughout. Most of the paragraphs restrain Congress, but one of them restrains the executive department, and another restrains all persons who hold an office of trust or profit under the United States. Position in the ninth section is therefore of no avail to give authority to Congress. Nor can position in the first article be used for such a purpose. The first article is not confined to Congress. The tenth section of it contains prohibitions on the states, and the seventh section gives the President the power of veto. In like manner, the judiciary article is not confined to its title, but gives Congress the power to declare the punishment for treason. Several of the powers of Congress are also enumerated in the fourth article. The argument from position proves nothing. The power given by