the sole judge when the necessity existed, and what it required.

Strange as may now seem this assertion of the despotic power of the Executive, it found ready adherents, and became, with the party in power, almost a recognized axiom in the interpretation of the Constitution, even among those who are now quite as ready to maintain an equally engrossing and despotic power in Congress. With them the war is not yet ended, and it will not be until their selfish ends and purposes are accomplished and secured.

I propose to call your attention to some of the evidences of this assumption of power by the Executive, and by Congress.

Of that great humbug, the emancipation proclamation, which Mr. Lincoln at the time compared to the Pope's bull against the comet, and of which Mr. Thaddeus Stevens of Pennsylvania said, recently, that "no thoughtful man ever supposed that it liberated a single slave," I have spoken and written heretofore." Noble in sentiment," he said; but it must stand as one of the evidences of the readiness of the persons then in power to disregard the provisions of the Constitution, respecting the rights of the States and of the people.

It has been asserted that if it did not liberate the slaves, it had a great effect in securing the success of the war. On the contrary, in my opinion, it had a direct tendency at the time to jeopardize its success. It doubtless gratified radical politicians, who should have given their hearty support to the prosecution of the war without it; but it cooled the zeal of others, who, however earnestly they might have desired the emancipation of the slaves, by any constitutional means, yet saw in it the inauguration of a system of measures, under a pretext of the "war power," which could have no legitimate existence under the Constitution, and which, while professing to make freemen of slaves, in fact made slaves of freemen. Certainly its direct tendency was to induce the rebels to fight with greater desperation.1

1 The effect of the proclamation, in exciting enthusiasm in support of the war, if to be found anywhere, must have exhibited itself in Massachusetts. The fact, however, that not even a company of volunteers was raised in Massachusetts after the proclamation was issued; but that the quota of troops required from that State, subsequently, was made up by the hardest of drafting, and by sending to Canada and Germany for white men, and all over the country for negroes, shows that the proclamation, if it had any effect, operated as a wet blanket.

The attempt, by a presidential proclamation, to declare martial law over the whole of the United States, and to suspend the habeas corpus throughout the length and breadth of the land, without regard to the existence of active military hostilities in particular localities, was an act of a kindred character, so far as constitutional power was involved, but much more mischievous in its pretensions.

A departure from its proper province has not been confined to the Executive department. With less of excuse, if possible, Congress has quite as signally violated the principles which should limit the action of that department; first, by attempting to confer unconstitutional power upon the President; afterwards by endeavoring to concentrate power in itself.

The Constitution provides that the privilege of the writ of habeas corpus shall not be suspended unless when in cases of rebellion or invasion the public safety may require it.

I have heretofore had occasion to maintain that this is a restriction and limitation of the power of suspension, and not a grant of such a power.

It is true that the government of the United States is a limited government, having only the powers expressly granted, or such as are incident to those powers, and it is true also that there is no grant of a power, in terms, to issue the writ of habeas corpus, or of a right to suspend it.

But the right to constitute courts carried with it, as an incident, the right to regulate the process and proceedings of those courts, within the limits of the jurisdiction authorized by the Constitution; and among other things to authorize the issue of the writ of habeas corpus, as well as other writs; and of course to prescribe, by law, the times and seasons, terms and conditions, in and upon which it should be granted or refused.

Under this general incidental authority, the right to regulate the writ is clearly a legislative power, in regard to the suspension of the privilege of the writ, as well as in regard to the issuing of it.

The framers of the Constitution, well aware that an unlimited power to suspend the privilege of this great safeguard of civil liberty would be liable to great abuse, inserted this clause of restriction and limitation upon the power of Congress in this respect.

The connection of the clause in the Constitution serves to show, that even if it were to be regarded as a grant of a power of suspension, the power is a legislative and not an executive power. And this has been its practical construction, for the original proclamation of Mr. Lincoln suspending the privilege of the writ, was not deemed, even by his political friends, a rightful exercise of executive power under the Constitution, as is fully shown by the fact that Congress passed an act, purporting to authorize the President to suspend it, when in his judgment the public safety should require it.

But this power of suspension, being a legislative power, it is not competent for Congress to grant away, or transfer it, any more than it is competent for that body to give to the President the power to say when and on what terms and conditions it shall be issued in the first instance. This is clear, upon the general principle that no legislative body can transfer and assign any of its powers of legislation. But the conclusion that the power to suspend cannot be assigned, or committed to the Executive, is apparent, further, from the fact that this clause of limitation shows that a judgment is to be exercised as to the time when the privilege may be suspended, within, and according to the limits of the Constitution. "The privilege".... "shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it."

The question whether there is rebellion or invasion is to be determined by the proper authority, in reference to this subject. But it is not sufficient to authorize the suspension, that there is rebellion or invasion, for that alone may not show that the public safety requires the suspension. There must be a judgment exercised at the time, not only that there is rebellion or invasion, but that the public safety does or may require the suspension; and this right of judgment involves the exercise of discretion on the part of the party who possesses, and may exercise the authority. It is perfectly clear that Congress possesses the power to exercise this judgment and discretion, and it follows with equal clearness, that it is its duty to judge; and that the power and duty cannot be assigned to another department, either executive or judicial.

Another violation of constitutional duty by the two Houses of Congress of a different character, and perhaps one which the

Supreme Court cannot reach, is found in a surrender by each to the other, of a part of its constitutional power, by a joint resolution, in these words:

"Be it resolved by the House of Representatives (the Senate concurring), That in order to close agitation upon a question which seems likely to disturb the action of the government, as well as to quiet the uncertainty which is agitating the minds of the people of the eleven States which have been declared to be in insurrection, no senator or representative shall be admitted into either branch of Congress, from any of said States, until Congress shall have declared such States entitled to representation."

If this was to be regarded as an act of legislation, so that the resolution is to have force as a law, it would be void; because the two Houses have assumed to act without the approval of the President. It would be a usurpation, the Constitution requiring that every order, resolution, or vote, to which the concurrence of the Senate and House of Representatives may be necessary, except on a question of adjournment, shall be presented to the President, who may interpose his objections.

But a distinction seems to be made between a joint resolution and a concurrent resolution, and no doubt this resolution was a little private arrangement between the two Houses, — a bargain respecting the exercise of the power severally possessed by each of judging of the election of its own members. Such is its true character, and as such, if it had taken the shape and form of ordinary legislation, with the prefix, "Be it enacted," or "Be it resolved, by the Senate and House of Representatives," and if it had been presented to and approved by the President, that would not have rendered it a constitutional act. I admit, that with the President's approval, it would have been no better than it is at present.

The Constitution provides that each House shall be the "judge of the elections, returns, and qualifications of its own members." There is a duty, as well as a power, of judgment.

From the very terms of the provision, the power granted is a several power; and thus it involves a several duty. It is not the subject-matter for a bargain between them. Neither House can confer upon the other any power to judge in relation to the subject, or agree to act in the matter according to the judgment of the other; and so they cannot agree that they will

jointly judge of the elections and qualifications of the members of both Houses. That would clearly be in violation of the provision that each shall judge of its own.

If, then, they cannot agree to judge jointly, they cannot agree that the one shall not judge and act without the consent of the other, or until a certain contingency shall happen, for that is an attempt to limit the action of each as to time, which is as much matter for the judgment of each, as any other part of the duty relating to the subject.

If we were to suppose this resolution to be valid, the result would be, that the House has tied its hands by a bargain, so that it cannot perform its constitutional duty without the consent of the Senate; and that the Senate cannot perform its constitutional duty without the consent of the House; and this in relation to a matter respecting which the Constitution has explicitly provided that each has a separate duty to perform.

It was said by a senator who supported the resolution, “It is a mere legislative declaration of our opinion and determination, that until Congress has declared the State (whichever one it may be that is before us) to be in a condition to be represented here, neither body will act upon the credentials of members. This admits that the action is legislative in its character, and this legislative declaration of their opinion and determination, is neither more nor less than a legislative bargain.

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The House initiate it, "Resolved (the Senate concurring),' and the Senate concur, that is they agree. It was made a concurrent resolution," because it was intended merely that the two Houses should agree, and not that the President should be asked to approve.

The same senator said: "Even after we have done it, after we have made that legislative declaration," . . . . "we as a Senate, I concede, can, in spite of this legislative declaration, at any moment take them" (the credentials)" from the table and act upon them, without asking the consent of the House of Representatives; and the House can, on its own side, in spite of this resolution, if passed, take the credentials of those claiming to be members of that House, and act upon them if it pleases."

But a "legislative declaration" by both Houses, concurring in a resolution, is an act of legislation, and this act of concur