Other resolutions were from time to time afterwards referred to the Committee of Detail, but in this, their first report, there was no clause relating to the Habeas Corpus.

On the 20th of August, Mr. Pinckney submitted and the House referred to the Committee of Detail, certain propositions, one of which was this, viz:

"The privileges and benefit of the writ of Habeas Corpus shall be enjoyed in this Government in the most expeditious and ample manner, and shall not be suspended by the Legislature, except upon the most urgent and pressing occasions, and for a limited time, not exceeding months."-Mad. Deb., 5. Ell. Deb., p.

434.

This was the second time that Mr. Pinckney had, among other resolutions, offered one restraining the suspension of the privilege of the Habeas Corpus, and on the 28th of August, and when Sec. + of Article XI., relating to the Judiciary, was under discussion, it was amended, nem. con., so as to read:

"SEC. 4. The trial of all crimes (except in cases of impeachment) shall be by jury; and such trial shall be held in the State where the said crimes shall have been committed; but when not committed within any State, then the trial shall be at such place or places as the Legislature may direct."

Mr. Madison (5 Ell. Deb., p. 484) immediately adds,—“ MR. PINCKNEY, urging the propriety of securing the benefit of the Habeas Corpus in the most ample manner, moved that it should not be suspended but on the most urgent occasions, and then only for a limited time, not exceeding twelve months.

“MR. RUTLEDGE was for declaring the Habeas Corpus inviolable. He did not conceive that a suspension could ever be necessary at the same time, through all the States."

"MR. GOVERNEUR MORRIS moved that "The privilege of the writ of Habeas Corpus shall not be suspended, unless where, in cases of rebellion or invasion, the public safety may require it."

"MR. WILSON doubted whether in any case a suspension could be necessary, as the discretion now exists with the judges in the most important cases to keep in gaol or admit to bail."

The first part of Mr. Governeur Morris's motion, to the word "unless," was agreed to, nem. con.

On the remaining part-New Hampshire, Massachusetts, Connecticut, Pennsylvania, Delaware, Maryland, Virginia,—7 voted aye; North Carolina, South Carolina, Georgia,-3 voted no. So this clause was, as it is expressed on the journal, "added" to the 4thsection. It will be observed that in place of the word "when" which is now in the Constitution, Mr. Morris used, and the Convention adopted, the word "where." This was an amendment to a section which provided for the place where trials should be held, and it may be that Mr. Morris intended by the word "where" to limit the suspension of the writ to the place where, in cases of rebellion or invasion, the public safety might require it to be suspended. Confirmatory of this are the words of Mr. Rutledge, which, briefly as they are reported, show that he did not think "that a suspension could ever be necessary, at the same time, through all the States"but only, of course, in a part of them; and immediately after this, Mr. Morris moved the foregoing clause. A little reflection must have convinced him, however, that the discretion given to the suspending power by the latter words of the clause, would allow it to be suspended at the same time through all the States," quite as well with "where" as with "when;" hence if the clause properly related to the Legislature, then the mover of it, and who, as the Chairman of the Committee on Style and Arrangement, changed this amendment from the XIth Article, which related to the Judiciary, to the IXth Article, which related to the Legislature, would very naturally and probably substitute "when" for "where." That the words were changed is not denied; it does not appear that the Convention made the change, and it is therefore probable that Mr. Morris himself did it. The reason first assigned, and its influence upon the meaning of the clause, will be hereafter noticed.

Thus being made a part of the supreme law of the land, is this power of suspension in the President, or in the Legislature?

In the first place it has been said that "this is a political rather than a legal question,—a mixed political and Constitutional question." And what then? Does that render the question itself easier of solution? Call it what you will, it still recurs for an answer. What is the meaning of the clause?

Doubtless here, as elsewhere, law may be divided into that part which classifies and regulates the powers of the departments of a

State, considered as a body politic, and that which regulates the conduct of the citizens of the State; and questions which relate to the former you may call political questions.

But what if you have not yet classified the powers of the former, or do not even know whether such departments possess a certain power, or to which one of two departments it belongs? There must be some one tribunal to determine whether the power exists, and if so where it is lodged. Let the case be that a citizen who has been imprisoned by the mere order of the President obtains a Writ of Habeas Corpus, and his keeper in the fort or prison returns that the President has suspended the privilege of the Writ, and has ordered the detention of the prisoner, the question thus presented is, can the President suspend the privilege of that writ?

Is that rather a political than a legal question? or is it not the latter only, and one which the Judiciary alone can decide? It would seem that simply to state such a case would be to answer it affirmatively. Judge Washington said of a like question—“ This question does not so much involve a contest for power between (two departments of the Government) as the rights and privileges of the citizen secured to him by the Constitution, the benefit of which he may justly claim."-5 Wheat. Rep., 22. And more than forty years ago, Mr. Webster, in replying to a similar remark, said, in the Convention to amend the Constitution of Massachusetts, "We look to the judicial tribunal for protection against illegal or unconstitutional acts, from whatever quarter they may proceed. It is the theory and plan of the Constitution to restrain the Legislature as well as other departments, and to subject their acts to judicial decision, whenever it appears that such acts infringe constitutional limits-and without this check, no certain limitation could exist on the exercise of legislative power. The Constitution, for example, declares that the Legislature shall not suspend the privilege or benefit of the Writ of Habeas Corpus, except under certain limitations. If a law should happen to be passed, restraining personal liberty, and an individual, feeling oppressed by it, should apply for his Habeas Corpus, must not the judges decide what is the benefit of the Habeas Corpus intended by the Constitution; what it is to suspend it, and whether the act of the Legisla

ture does, in the given case, conform to the Constitution? All these questions would of course arise."

"It is a rule in construing treaties," and a much stronger one in construing a Constitution, "that, from history and policy, as well as language, are to be gathered the views of the parties making them." -Johnson, J., 6 Wheat. 85. By the common law of England, every freeman had the absolute and unqualified right to the liberty of his person. To suppose that right, without the legal means of maintaining it, or of regaining it, would be the highest absurdity; therefore, by the law he was entitled to be forthwith restored to his liberty; but as he might have violated the law, and, therefore, his liberty be rightly restrained, the duly constituted Judges were commanded to inquire and determine whether he had done so or not, and as that could only be done by legal process or writ, it follows that such writ must necessarily result from, and be coeval with, the right itself; the party imprisoned was thus of right entitled to the writ; which is, therefore, called by the common law a writ of right. It was not one, the granting of which depended on the favor of the King, or the discretion of the Judges, for that would have been to make his will or their discretion the measure of the people's rights.

At the common law, even in the reign of King Alfred, the most ancient book in the law says there was no such thing as a writ of favor, for they were all remedial writs, grantable as of debt, as due of right.—(Mirror of Justice; c. 5, s. 1.)*

That the common law did not allow the people to be imprisoned at the mere will of the King, and that they had a right to be forthwith released from such imprisonment, did not hinder the Kings of England from beating down the right, or delaying the remedy.

From the time that King John ascended the throne, till James II. abdicated, there was an undying struggle between the prerogative to imprison without bail, trial, or judgment, and the privilege from arrest, unless by due course of law.

The ignorance and wilful disregard, by King John and his Judges, of the old and accustomed laws and rights of the people, the domestic injuries received from him in person, as well as from acts of

"The Rights and Liberties of Englishmen."

general oppression, obliged them by force of arms to wrest from him the Great Charter. What those chief and accustomed laws were, and how they had been violated, may be learned from the Charter itself, and from the articles which they compelled him to subscribe to immediately preceding it.

One of those articles shortly and forcibly expresses the right of every freeman to his personal liberty, and forever forbids his imprisonment without due process of law.-Chap. 29. "Ne corpus liberi hominis capiatur nec imprisonetur nec dissaisietur nec utlagetur nec exuletur nec aliquo modo destruatur nec rex eat vel mittat super eum vi nisi per judicium parium suorum vel per legem

terre."

The like words are in the Great Charter itself. But neither John nor many of his successors appear to have regarded the most solemn laws, their own Charters, or even their own oaths.

From the granting of Magna Charta till the time of Sir Edward Coke, he declared that it had been established, confirmed, and commanded to be put in execution, by two and thirty several acts of Parliament. But history has never been able to record the unnumbered violations of that Charter, especially of its prohibition of arbitrary imprisonment.

Among the devices to evade the privilege of the Habeas Corpus, and to maintain the power of arbitrary imprisonment, it was pretended that in the towers and castles of the King freemen might be imprisoned by the order of the King and his chief officers, as if those forts were not within a county, or as if the Writ of Habeas Corpus did not run therein; but to remedy that, even in the reign of one of the most lawless and law-suspending Kings, Richard II., it was enacted that the King's castles and gaols, which were wont to be joined to the bodies of the counties, but were then severed therefrom, should be re-joined to the same counties. So intent were the people to secure their liberties entire and inviolate, that they added to the resolves of the Parliament the sanctions of the Church and of religion; for by the fourth chapter of the Great Charter of Edward I., the archbishops and bishops were commanded to excommunicate all those who, by word, deed, or counsel, broke that or the prior Charters; and the clergy proposed a formal and dreadful curse upon whomsoever should violate that, as in like manner in