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process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.1
Among the enumerated powers of Congress is the following clause:
The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require.2
This clause first forbids the suspension of the writ absolutely.
A single exception is then made by the words ‘unless the public safety may require.’
A condition is attached to this exception which still further limits it, by the words ‘in cases of rebellion or invasion.’
There is still another and far more sweeping limitation attached to this clause.
The writ must be suspended by an act of Congress, which can be passed only when Congress is in session.
This suspension must be positive and absolute by Congress, not indefinite and dependent on any future contingency.
For the acts of Congress are not absolute powers, if between enactment and enforcement they can be set aside by a contingency, unless such contingency was attached in the clause of the grant creating the power.
But in these words of the
Constitution there is no contingency expressed.
Congress alone by positive enactment can suspend the writ of
habeas corpus. It cannot authorize the
President to suspend its force, nor has he any authority under the
Constitution to do it. Neither can Congress make an intermittent suspension of the force of the writ; it must be absolute under the specific condition.
It is evident that the citizen of New York was abundantly provided with the safeguards of personal liberty; yet they all proved to be of no avail to secure and enforce his right in the hour of trial.
A few instances will afford an illustration of the facts.
Pierce Butler was suspected of corresponding with persons in the
Confederate States.
He was arrested in
Philadelphia on August 19, 1861, by order of
Simon Cameron, then
Secretary of War, without process of law and without any assigned cause.
His trunks and drawers, wardrobe, and entire apartments were searched, and his private papers taken by the marshal and his four assistants.
His office was also examined, and his books and papers taken, and within an hour he was on his way to Fort Lafayette with an armed guard.
After five weeks of detention he was liberated.
No reason was given for his discharge any more than for his arrest.
As
Cameron was about to sail as minister to
Russia, in January ensuing, he was arrested for assault and battery and false imprisonment, at the suit of
Butler.
The case was brought to the knowledge of the
President of the
United 
