Page:Suspension of Habeas Corpus during the War of the Rebellion.djvu/18

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No. 3.]

act which by prohibiting vessels from leaving port practically destroyed commerce was said to be a natural incident of the power to regulate commerce. The whole question of habeas corpus hinges on this doctrine of implied powers. Congress may do all things necessary and proper to put down a rebellion, and if the suspension of habeas corpus is necessary and proper for that purpose, then Congress and not the President may suspend. Binney never answered these statements, and it is doubtful if they can be answered.

The argument against Binney amounts to this: If there were no habeas corpus clause the right to suspend could be implied from the war powers of Congress, therefore it is unnecessary to read a grant into a clause which is expressed in the form of a restriction, and so the clause is simply a restriction on the implied right of Congress to suspend. Then it is an undoubted fact that the state conventions when adopting the constitution supposed that the suspending power had been given to Congress alone. This of itself is almost enough to settle the question. What was intended by the convention which framed the constitution is of comparatively little importance. That convention was simply offering a constitution, and their opinion about it could not bind the people. But the state conventions were accepting, ratifying, and creating the constitution, and what they understood it to be is almost decisive. When we add to this the fact, that up to 1861 all authorities agreed in ascribing the power to Congress, we have an argument which even the marvellous ingenuity of Binney cannot overcome.

It is curious that in spite of the great importance of the habeas corpus question, very little is said about it in the debates of the convention which framed the constitution and it is hardly referred to in The Federalist. The people of that day were easily excited on the subject of liberty, and Binney suggests, that the Fathers said as little as possible about it, because they were afraid of arousing a discussion which would interfere with the adoption of the constitution. The addition of two or three words to the habeas corpus clause would have put the matter beyond the peradventure of a doubt, and their failure to do this