Page:Suspension of Habeas Corpus during the War of the Rebellion.djvu/20

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No. 3.]

bring their bodies before any judge who may send him a writ of habeas corpus, and submit to whatever the judge shall see fit to order? Bates said he felt so sure of the power of the President, that he argued about habeas corpus only out of deference to the opinions of others; that he thought it no more necessary to suspend habeas corpus in order to enable the President to arrest spies[1] than to suspend the writ of replevin before seizing the arms and munitions of the enemy.

His reasoning is peculiar. He begins by assuming the proposition which has to be proved. He argues that the President has the power to suspend because he has the power to arrest and imprison. But the right to arrest is derived, if at all, from the right to suspend. It is impossible to reverse the order; for the privilege of habeas corpus is intended to be a protection against arrest and imprisonment by the sovereign. Again, he derives the right to arrest and imprison from the oath to preserve and defend the constitution. An oath cannot contain a grant of power which conflicts with other parts of the constitution, and the grant would in this case conflict with the provision declaring that no citizen shall be deprived of life, liberty or property without due process of law, and also with the provision which forbids arrests except by sworn warrants on probable cause. The only exception allowed by the constitution to these two provisions is when habeas corpus is suspended. Arrest and imprisonment derive their validity from suspension.[2] The right to arrest and imprison is the thing to be proved. His final assertion, that when the President has arrested an emissary it is a political act and cannot be interfered with by a department

  1. Bates uses the word spy all through his argument, but not I presume in its technical sense. There is no doubt that persons technically spies may be dealt with by the laws of war; they are outside of the pale of the civil law. Bates uses the word in a broad sense and means by it a citizen who remains at home and gives aid to the enemy. What to do with such persons was one of the great problems of the civil war.
  2. It was disputed during the war whether the President would have the right to arrest even when habeas corpus was suspended. Some said he would not, because it would violate the constitutional provisions about seizures and searches, due process of law and arrest warrants. They thought that when Congress suspended habeas corpus another act should be passed, giving the President the right to arrest. Suspen-