The Continental Monthly, Vol. 4, No. 5, November, 1863Various
History
The Continental Monthly, Vol. 4, No. 5, November, 1863
Various
Literature, Modern -- 19th century -- Periodicals; United States -- Politics and government -- 19th century -- Periodicals
And finally, the constitutional right in certain cases to suspend the
ordinary privilege of the writ of _habeas corpus_ carries with it, of
course, an equally constitutional right to make what you call 'arbitrary
arrests.' The very object of granting the power to vacate the privilege
of the writ is to enable the Executive to hold in custody such persons
as it may judge the 'public safety requires' the holding of--without its
purpose being frustrated by judicial interference. But the power to
_hold_ in custody is utterly nugatory, if there be no power to _take_
into custody. To suppose that the Constitution grants the one, but
denies the other, is to suppose it self-stultified by contradictory
provisions--and that in a case where the public safety in time of
imminent peril is concerned. The only consistent and sensible view of
the Constitution is, that as the validity of the writ of _habeas corpus_
is the ordinary rule, and its suspension the extraordinary exception--so
the power to make arrests by civil process only is the ordinary rule,
and the power to make arrests by military or executive authority is the
extraordinary exception--both exceptions alike holding 'when, in cases
of rebellion or invasion, the public safety may require.' In such cases
the ordinary guarantees of personal liberty are constitutionally made to
give way to the operation of the extraordinary powers demanded by the
necessities of the state. It has always been so in all Governments; and
every Government--unless it suicidally abnegate its highest function and
supremest duty, that of maintaining itself and securing the national
safety--must, in time of rebellion and civil war, possess such powers,
powers to repress and prevent, in the first moment of necessity, what,
if let go on, it might be too late to cure by judicial or any other
process.
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