Page:Suspension of Habeas Corpus during the War of the Rebellion.djvu/14

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No. 3.]

specifically given the right to suspend habeas corpus, when it was given the right to regulate the courts, out of which the writ issues. The habeas corpus clause is an exception to this power.

Binney wrote another pamphlet in reply to this reasoning. He showed what is very evident, namely, that to suppose the constitution silent and infer from that the right of Congress to suspend was mere assertion and a begging of the question. More than that, it was contrary to the most fundamental principle of constitutional law. No powers can be assumed for any part of the government. Nothing is so well settled as the doctrine that Congress has only the powers which are expressly given by the constitution and such other instrumental and incidental powers as are necessary to carry the expressed powers into effect. Ours is a government of enumerated and limited powers, and the powers not mentioned in the constitution are reserved to the states or to the people. It is monstrous to assert that a power exists simply because the constitution says nothing about it. By that reasoning Congress would be omnipotent. It is equally useless to contend that the habeas corpus clause is a restriction on the power of Congress to regulate the courts. Congress has no such power. It is true that it can regulate the appellate jurisdiction of the Supreme Court, and decide on the number of inferior courts, but that is all. The constitution says:

The judicial power of the United States shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish.

And again:

The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, etc., etc.

The constitution has therefore vested the judicial power in certain courts. Congress has a discretion as to the number and order of the inferior courts, but it has no discretion whatever as to vesting or not vesting the whole judicial power in courts of some description. The language of the constitution is manda-