Page:Suspension of Habeas Corpus during the War of the Rebellion.djvu/11

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[Vol. III.

the suspending clause is left to the department which by the general theory of the constitution has charge of the public safety in times of rebellion or invasion.

If instead of using the word privilege, the clause had spoken of the writ of habeas corpus or of a habeas corpus act, there might be ground for arguing that a writ or an act being created by legislative power may be suspended only by the same. But the privilege being spoken of,—the privilege of being bailed, tried or discharged,—an arrest and detention, which is exclusively an executive function, is enough to suspend the privilege, and no legislative act is necessary. The clause does not give power to authorize suspension, it gives power actually to suspend. The clause itself contains all the authority. If it had given some department the right to authorize suspension, the authorization might be a legislative act, but the right actually to suspend is executive. No legislative body can suspend the privilege by an act on the person to be affected, and they never attempt it. Parliament never actually suspends habeas corpus. They authorize the crown or ministry to do it as the occasion arises. That is all that Congress could do, namely, give effect to the action of the President or some one else, and that the constitution does already.[1]

Binney attempted to show, that no authority to any department could be inferred from English analogy, or from the position or wording of the clause, and that suspending the privilege was naturally an executive act. Whether it is an executive act under the constitution depends somewhat on the question, which department has the duty of ascertaining the conditions of rebellion or invasion and the requirement of public safety. Binney argued that it was clearly the executive. It is his duty faithfully to execute the laws and to protect the constitution.[2] He is commander-in-chief of the

  1. The Habeas Corpus act of Congress, passed March 3, 1863, supports this reasoning. The first section provides that "during the present rebellion the President of the United States, whenever in his judgment the public safety may require it, is authorized to suspend the writ of habeas corpus," etc.

    Congress does not attempt to suspend but authorizes the President to do so.

  2. Const. Art. 2, sec. 3, "He shall take care that the laws be faithfully executed."