Rebellion Record: a Diary of American Events: Documents and Narratives, Volume 2.
Frank Moore, Ed.

[187] hereinafter stated, is nowhere mentioned in the Constitution or secured to the citizen by any general phraseology. Independent of the exception alluded to, the writ being given or recognized by law might have by law been repealed, and consequently have been repealed by Congress, in whom was vested, but for the exception, ample power for that purpose. The legislative authority of that body is delegated, not by the entire first article of the Constitution, but by the eighth section of that article alone. Under these powers it is clear that Congress might have refused to authorize a writ. Without such authority no court or judge of the United States could issue it; and because of this, Congress passed the fourteenth section of the judiciary act of 1789. The officer or court to issue the writ being to be designated by Congress, Congress might now repeal that part of the act, and the writ would not exist as a remedy under the Government of the Union. That such a measure would be wrong is admitted; but it would not be such a wrong as would make it unconstitutional. Its correction would be left with the people, as its occurrence is not to be anticipated because of the responsibility of Congress to the people. But occurring, and as long as it might continue, the writ would be of no avail under the Government of the Union. The exception referred to is in the second paragraph of the ninth section of the article. This is the paragraph which it is supposed renders the conduct of the President in the particular under consideration so clearly unconstitutional, and “too plain and too well settled,” as unconstitutional, “to be open to dispute.” The words of the paragraph are: “The privilege of the writ of habeas corpus shall not be suspended unless when, in case of rebellion or invasion, the public safety may require it.” It is said that this clause is in the article “devoted to the Legislative department,” “and has not the slightest reference to the Executive department,” and was designed, therefore, to give the particular power to suspend the writ exclusively to Congress.

In the first place, the statement is erroneous in point of fact. It is true that the general object of the article is to constitute the legislative department, and to confer on it all the legislative authority of the Government. But that is not its exclusive purpose. The 10th section of the article has nothing to do with the legislative power of the Union. It is devoted altogether to restraints on State power. These are made in certain cases absolute, and in others dependent on Congressional assent, but they contain no grant of legislative power to Congress. That power, and the whole that the body possesses, is given by the 8th section. That section commences with saying, “The Congress shall have power,” and in eighteen paragraphs states the cases to which the power is to extend. The exclusion of all other powers than those there given is not only admitted, because the powers of Congress are all enumerated, but because of the terms with which the article begins, “all legislative powers herein granted shall be vested in Congress,” excluding of course all powers not embraced by the grant. This being the scope of the power which is in any one of the instances delegated by the 8th section of the article, that cannot, by any latitude of construction even, be held to vest in Congress exclusively the right to suspend the writ of habeas corpus. It is safe to say that there is not one. Unlike the British Parliament, Congress has no legislative authority other than that expressly delegated or reasonably to be implied from what is delegated. If therefore, as will be evident from an examination of the 8th section, there is nothing in it giving the power to suspend the writ to Congress alone, that power, if found anywhere, is not in the only section which confers legislative power. But it is said that the restriction on the authority to suspend the writ being in the 2d paragraph of the 9th section, and the entire article having “not the slightest reference to the Executive Department,” shows that the power to suspend the writ was intended to be vested in Congress alone. The error of this statement has already been pointed out by referring to the nature of the 10th section of the article, which is wholly devoted to the negation of power to the States, and not to the grant of power to Congress. But the error is also apparent, though not to the same extent, by the provisions in the 9th section itself. The 7th paragraph of the section as clearly embraces the Executive as does any part of the succeeding one. By that paragraph it is provided that, “no money shall be drawn from the Treasury but by appropriations made by law, and a regular statement and account of the receipts and expenditures of all public money shall be published from time to time.” These clearly, so far from not having “the slightest reference to the Executive department,” refer almost exclusively to that department. The Treasury is and must be under the Executive control. A restraint, therefore, on the authority to draw money out of the Treasury, directly and exclusively applies to the department. So again, in the following, the 8th paragraph: “No person holding any office of profit or trust under them, [ the United States, ] shall, without the consent of Congress, accept of any present, emolument, office, or title of any kind whatever from any king, prince, or foreign State.” Officers of the United States are a part of the Executive department, and, but for this prohibition, could accept the things here prohibited. This clause, therefore, like the other, so far from not having “the slightest respect to the Executive department,” refers directly and exclusively to that department. The assumption, then, of the Chief-Justice as to the nature of the article being unfounded, the weight of the argument, whatever that would otherwise be, founded on the assumption totally fails.

But there are other reesons for supposing