War of the Rebellion: Serial 115 Page 0028 PRISONERS OF WAR, ETC.

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of rsion the public safety may require it. But the Constitution is silent as to who may suspend it when the contingency happens. I am aware that it has been declared by the Supreme Court that-

If at any time the public safety should require the suspension of the powers vested by this act [meaning the judiciary act of 1789, section 14] in the courts of the United States, it is for the legislature to say so. That question depends upon political considerations, on which the legislature is to decide.

Upon this I remark only that the Constitution is older than the judiciary act, and yet it speaks of the privilege of the writ of habeas corpus as a thing in existence; it is in general terms, and does not speak with particular reference to powers which might or might not be granted by a future act of Congress. Besides I take it for certain that in the common course of legislation Congress has power at any time to repeal the judiciary act of 1789 and the act of 1833 (which grants to the courts and to the judges the power to issue writs) without waiting for a rebellion or invasion and a consequent public necessity to justify under the Constitution the suspension of the privilege of the writ of habeas corpus. The court does not speak of suspending the privilege of the writ, but of suspending the powers vested in the court by the act. The power to issue a with can hardly be called a privilege, yet the right of an individual to invoke the protection of his government in that form may well be designated by that name. And I should infer with a good eal of confidence that the court meant to speak only of its own powers and not of the privilege of individuals but for the fact that the court ascribes the powers to suspend to the legislature upon political grounds. It says, "that question depends upon political considerations, on which the legislature is to decide. " Now I had supposed that questions did not belong exclusively to the legislature because they depend upon political considerations, inasmuch as the President in his consitutional and official duties is quite as political as is the Congress, and has daily occasion in the common routine of affairs to determine questions upon political consi

if by the phrase "the suspension of the privilege of the writ of habeas corpus" we must understand a repeal of all power to issue the writ, then I freely admit that none but Congress can do it. But if we are at liberty to understand the phrase to mean that in case of a great and dangerous rebellion like the present the public safety reqires the arrest and confinement of persons implicated in that rebellion, I as freely declare the opinion that the President has lawful power to suspend the privilege of person arrested under such circumstances; for he is especially charged by the Constitution with the "public safety," and he is the sole judge of the emergency which requires his prompt action.

This power in the President is no part of his ordinary duty in time of peace; it is temporary and exceptional, and was inteded only to meet a pressing emergency when the judiciary is found to be too weak to insure the public safety; when (in the language of the act of Congress) there are "combinations too powerful to be suppressed by the ordinary course of judicial proceedings or by the powers vested in the marshals. " Then and not till then has he the lawful authority to call to his aid the military power of the nation and with that power perform his great legal and constitutional duty to suppress the insurrection. And shall it be said that when he has fought and captured the insurgent army and has seized their secret spies and emissaries he is