New York, January 8,1863.
My Dear Sumner,
— This will be, indeed, a trial of your temper. If you have not smitten me in
your heart, you are a good, kind-hearted fellow. I am just now excessively busy
with a number of widely different subjects. You know how this rags the
mind. Excuse me; it is all I can say for the past, and for the additional
request, which I fear you will call impudent, — to try to get a copy of Mr.
Read's MS. for me. Would the author give me one, if applied to? You ask me what
I think of it. I will simply state what I still think of the suspension of the
Habeas Corpus in our country, and at the present juncture.
First. The analogy between the crown of England and
our Executive, regarding the suspension of the Habeas Corpus, does not exist
and never existed.
Second. Although there exists in England a division
of powers, and clearly has existed there earlier than in any other country, yet
Parliament, combining the three estates, has absolute and sovereign power,
unstinted and unlimited. It can suspend and does suspend Habeas Corpus.
Third. Our Constitution prohibits this emphatically.
Neither Congress nor Executive (the latter is not included in Congress as the
King is in Parliament) shall suspend it, forevermore, except,
Fourth. In cases of insurrection or rebellion. Who,
then, shall have the right to suspend the Habeas Corpus?
Fifth. Every one who maintains that it can be proved
with absolute certainty that the framers of the Constitution meant that
Congress alone should have the power, and in all cases of insurrection, &c,
is in error. There is doubt — twofold
doubt. It cannot mathematically be proved from the Constitution itself, or from
analogy which does not exist, or from the debates, or history.
Sixth. The Constitution most clearly does not
contemplate a state of things such as exists now. No framer ever thought of
such a thing, or could have thought of it.
Seventh. If the power belongs to Congress alone, all
it can do in cases of great emergency is the general grant of suspension to the
Executive. Congress cannot enact the suspension in each case. It would amount
to hardly anything more than the Congressional right to declare whether there
is a rebellion or not, for the court has already declared that if there be an
insurrection, it may be suspended.
Eighth. What is to be done if an insurrection takes
place while Congress is not sitting, as was the case in the present Civil War,
or when Congress cannot be assembled? This case may be readily imagined.
Ninth. I defy any assemblage of as stout lovers of
liberty as I am, as patriotic as William the Silent, and as calm and unselfish
as Washington, to say that a country can be saved in her last extremity, when
the ship of state is drifting toward breakers, without the Executive's
possession of the power to make arrests, disregarding the ever-glorious bars
with which Anglican civicism has hedged in each citizen. This is dangerous; who
does not know it? but all things of high import, all truths of elementary or
highest character are dangerous. All medicine, all power, all civilization, all
food, — all are dangerous.
Tenth. But this power in the Executive is less
dangerous in the United States than in other countries; and no more dangerous
in the Executive than in the Legislature, because responsibility centres, in
the Executive, in an individual. Who can impeach a Congress? You can do it as
little as you can try a people. God alone can do that, and does it severely,
too.
Eleventh. If, in such a state of things as indicated
in ninth, the Executive has not the power alluded to, that will happen
which always happens — it must arrogate it; and usurpation is a greater danger
still.
Twelfth. This
whole question must not be arrogated by lawyers as a subject belonging to them
alone, — or, I should say, to the lawyer alone. It is a question to be argued,
weighed, and disposed of by the citizen and patriot within each of us, and by
the statesman, in the loftiest sense. No party platitude or wheel-rattling of
favorite theories, no special pleading of the keenest one-sidedness, no oratory
of the finest flight, no insisting on the pound of flesh, can decide this
question. . . .
SOURCE: Thomas Sergeant Perry, Editor, The Life and
Letters of Francis Lieber, p. 328-30
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