north america-2-第59章
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been issued by the Constitution itself； therefore the power of exercising the suspension of the writ may properly be presumed to be in the hands of the President and not to be in the hands of Congress。 If I follow Mr。 Binney's argument； it amounts to so much。 But it seems to me that Mr。 Binney is wrong in his premises and wrong in his conclusion。 The article of the Constitution in question does not define the conditions under which the privilege of the writ shall be suspended。 It simply states that this privilege shall never be suspended except under certain conditions。 It shall not be suspended unless when the public safety may require such suspension on account of rebellion or invasion。 Rebellion or invasion is not necessarily to produce such suspension。 There is； indeed； no naked matter of fact to guide either President or Congress in the matter； and therefore I say that Mr。 Binney is wrong in his premises。 Rebellion or invasion might occur twenty times over； and might even endanger the public safety； without justifying the suspension of the privilege of the writ under the Constitution。 I say also that Mr。 Binney is wrong in his conclusion。 The public safety must require the suspension before the suspension can be justified； and such requirement must be a matter for judgment and for the exercise of discretion。 Whether or no there shall be any suspension is a matter for deliberationnot one simply for executive action； as though it were already ordered。 There is no matter…of…fact conclusion from facts。 Should invasion or rebellion occur； and should the public safety； in consequence of such rebellion or invasion； require the suspension of the privilege of the writ； then； and only then； may the privilege be suspended。 But to whom is the power； or rather the duty； of exercising this discretion delegated？ Mr。 Binney says that 〃there is no express delegation of the power in the Constitution？〃 I maintain that Mr。 Binney is again wrong； and that the Constitution does expressly delegate the power； not to the President； but to Congress。 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 itwhich； 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。 The chief purport of the Constitution is to guard the liberties of the people； and to confide to a deliberative body the consideration of all circumstances by which those liberties may be affected。 The President shall command the army； but Congress shall raise and support the army。 Congress shall declare war。 Congress shall coin money。 Congress； by one of its bodies； shall sanction treaties。 Congress shall establish such law courts as are not established by the Constitution。 Under no circumstances is the President to decree what shall be done。 But he is to do those things which the Constitution has decreed or which Congress shall decree。 It is monstrous to suppose that power over the privilege of the writ of habeas corpus would； among such a people； and under such a Constitution； be given without limit to the chief officer； the only condition being that there should be some rebellion。 Such rebellion might be in Utah Territory； or some trouble in the uttermost bounds of Texas would suffice。 Any invasion； such as an inroad by the savages of Old Mexico upon New Mexico； would justify an arbitrary President in robbing all the people of all the States of their liberties！ A squabble on the borders of Canada would put such a power into the hands of the President for four years； or the presence of an English frigate in the St。 Juan channel might be held to do so。 I say that such a theory is monstrous。 And the effect of this breach of the Constitution at the present day has been very disastrous。 It has taught those who have not been close observers of the American struggle to believe that； after all； the Americans are indifferent as to their liberties。 Such pranks have been played before high heaven by men utterly unfitted for the use of great power； as have scared all the nations。 Mr。 Lincoln； the President by whom this unconstitutional act has been done； apparently delegated his assumed authority to his minister； Mr。 Seward。 Mr。 Seward has reveled in the privilege of unrestrained arrests； and has locked men up with reason and without。 He has instituted passports and surveillance； and placed himself at the head of an omnipresent police system with all the gusto of a Fouche； though luckily without a Fouche's craft or cunning。 The time will probably come when Mr。 Seward must pay for thisnot with his life or liberty； but with his reputation and political name。 But in the mean time his lettres de cachet have run everywhere through the States。 The pranks which he played were absurd； and the arrests which he made were grievous。 After awhile； when it became manifest that Mr。 Seward had not found a way to success； when it was seen that he had inaugurated no great mode of putting down rebellion； he apparently lost his power in the cabinet。 The arrests ceased； the passports were discontinued； and the prison doors were gradually opened。 Mr。 Seward was deposed； not from the cabinet； but from the premiership of the cabinet。 The suspension of the privilege of the writ of habeas corpus was not countermanded； but the operation of the suspension was allowed to become less and less onerous； and now； in April； 1862； within a year of the commencement of the suspension； it has； I think； nearly died out。 The object in hand now is rather that of getting rid of political prisoners than of taking others。 This assumption by the government of an unconstitutional power has； as I have said； taught many lookers on to think that the Americans are indifferent to their liberties。 I myself do not believe that such a conclusion would be just。 During the present crisis the strong feeling of the peoplethat feeling which for the moment has been dominanthas been one in favor of the government as against rebellion。 There has been a passionate resolution to support the nationality of the nation。 Men have felt that they must make individual sacrifices； and that such sacrifices must include a temporary suspension of some of their constitutional rights。 But I think that this temporary suspension is already regarded with jealous eyes； with an increasing jealousy which will have created a reaction against such policy as that which Mr。 Seward has attemped； long before the close of Mr。 Lincoln's Presidency。 I know that it is wrong in a writer to commit himself to prophecies； but I find it impossible to write upon this subject without doing so。 As I must express a surmise on this subject； I venture to prophesy that the Americans of the States will soon show that they are not indifferent to the suspension of the privilege of the writ of habeas corpus。 On that matter of
