This Is Done So Clearly, To My Mind, That I Cannot
Understand The Misunderstanding Which Has Existed In The States Upon
The Subject.
The first article of the Constitution treats "of the
legislature." The second article treats "of the executive?" The
third treats "of the judiciary." After that there are certain
"miscellaneous articles" so called.
The eighth section of the first
article gives, as I have said before, a list of things which the
legislature or Congress shall do. The ninth section gives a list of
things which the legislature or Congress shall not do. The second
item in this list is the prohibition of any suspension of the
privilege of the writ of habeas corpus, except under certain
circumstances. This prohibition is therefore expressly placed upon
Congress, and this prohibition contains the only authority under
which the privilege can be constitutionally suspended. Then comes
the article on the executive, which defines the powers that the
President shall exercise. In that article there is no word
referring to the suspension of the privilege of the writ. He that
runs may read.
I say, therefore, that Mr. Lincoln's government has committed a
breach of the Constitution in taking upon itself to suspend the
privilege; a breach against the letter of the Constitution. It has
assumed a power which the Constitution has not given it - which,
indeed, the Constitution, by placing it in the hands of another
body, has manifestly declined to put into the hands of the
Executive; and it has also committed a breach against the spirit of
the Constitution.
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