Page:Suspension of Habeas Corpus during the War of the Rebellion.djvu/8

From Wikisource
Jump to: navigation, search
This page has been validated.
No. 3.]

there might be an analogy. But comparing the two constitutions, as they actually exist, there is none. Our habeas corpus clause is entirely un-English because it restrains the legislative power as well as all other power, and it is thoroughly American because it is conservative of personal freedom and also of the public safety in the day of danger.

There is still another particular in which we must guard against analogy. The motive of the English people in putting the habeas corpus power entirely within the control of Parliament was their jealousy of the Crown. Before the time of Charles II., the King had often atrociously abused the power of arrest and acted in utter disregard of the privilege of habeas corpus. It was the dread of such behavior of their monarchs, who at that time still retained a great deal of their arbitrary power, which aroused the English people to pass the great habeas corpus act. But the framers of our constitution had no such fears of the President. The powers of his office had been substantially settled before the habeas corpus clause was proposed, and there was nothing in those powers to excite alarm. They had given him no power which he could abuse or enlarge except with more danger to himself than to the country. Elected for only four years, unable to veto a law if two-thirds of each house are opposed to him, unable to make a treaty unless two-thirds of the Senate concur, or to appoint a minister, consul, judge, or any officer but inferior ones without the advice and consent of the Senate, commander of the army and navy but unable to arm a soldier or build a ship unless Congress consent, commander of the militia but only when Congress has called them into service, unable to adjourn Congress except when they disagree as to the time of adjournment, and impeachable for any misconduct in office:—such is the array of our President's powers, and distinguished foreigners[1] have remarked that he is probably the feeblest executive ever known in a civilized community.

The history of the clause in the convention that framed the

  1. De Tocqueville and Bulwer Lytton.