decisions are open to the inquiry of no judge and the investigation of no tribunal. There is no positive power which may act or be called upon to act, to stay its caprice or to check its arbitrary career, since judgment and execution are in its own command, and the normal action and administration is suspended, and the organized force of the whole is subordinate to it.

The power which appears in the suspension of the habeas corpus is a necessary right. It is the assertion of the right in the supreme necessity of the state and in the imminent or immediate peril of the people to suspend the ordinary process of rights. It is the right of the nation which is precedent to the rights of the individual or the community. The inquiry has been, as to its residence, in the legislative or the executive power. The evidence of its ultimate residence in the former, appears in its nature, in its historical institution, and in the conditions in which it may be formed.

It is a right of the nation in its sovereignty. But there is always implied in sovereignty the conception of law, and the legislative power is the only one which in its action can affirm its determination as law. Thus Blackstone says: "sovereignty and legislation are convertible terms, and one cannot subsist without the other." This power, moreover, is the only one, the nature and method of whose action tends in itself to exclude the arbitrary. Thus, as the act of the sovereignty of the nation in its highest expression, it is to be presumed that this is not wholly withdrawn from the legislative power. Its reference to the legislature would also correspond with the residence of the sovereign rights of the nation, in immediate analogy with it, as for instance, the declaration of war..

. The government is, morever, in its normal structure, a government of laws. If then the legislature by its own enactment suspends the ordinary action of the government, there is still, in its ultimate conception, the continuance of

law, and as the power from which the law proceeds declares, by its enactment, the suspension and then the restoration of the habeas corpus, there appears still, in the permanent and substantial order, the maintenance of law. The act is divested of its apparent antagonism, and wears no longer the appearance of a civil cataclysm. But to refer the suspension of the habeas corpus to the executive, seems an immediate contradiction to the normal process of the nation and the subversion of its order.

To refer this office to the executive might, in fact, occasion the negation of the other normal powers, as in their process they became subject to the single power in whose exclusive control this act was placed, and by whom it might alone be exercised. The form might remain, and the judicial power could still open its courts, but the act of the executive would decide if any might seek their protection, and the legislative power could continue its sessions, but all laws might be rendered inoperative by the sole actual power, the executive," the will of the commander-in-chief as general, commanding the army." It is not implied that, if the action were vested in the executive power, it would remove the other powers, since this would be the subversion of the organization of the nation, and the destruction of its constitutional order; but this would not be requisite to its design, since the act of the executive, in so far as it might elect, would be, in fact, an absolute veto upon the action of the other powers, and would enable the executive to avoid all laws enacted by the legislature and all decisions of the judges.

If, moreover, the executive alone held this office, it would allow an individual to originate a condition of affairs, in which not only an individual will could act without control, but the will would be the same which originated the condition. The act and the whole subsequent power resultant from it, would be referred to the same department of government, and that resident in an individual. It would not

be possible for a people to construct a broader highway for a tyrant to come in. It would concede the assumption of all power beyond all actual limitation, to an individual. The political body can scarcely contemplate the possibility thus, of the accumulation in the hands of one person of all its powers, beyond its normal control and in the cessation of its normal process.

The whole body of rights, moreover, in which freedom subsists, both civil and political, is in the process of positive law, and to allow its suspension to an individual who then could alone determine the continuance of the period of that suspension, is not only what the nation could not concede, but it is a power which no member of the nation should possess, since the inevitable disaster which follows all arbitrary action is too great and the contingency of such action in the weakness and the aberration of the individual is too near.

The highest guaranty of the freedom of the nation, and the prudent limitation to this act is in its being so construed that the suspension of the habeas corpus by one power shall require the immediate transfer of all authority under it to another and separate power. The legislature in suspending the habeas corpus does not assume the resultant authority, but refers it to the executive, from whom in its discretion, it may withdraw it.

There is the necessity for the most careful and yet the most ample provision, for this act and the exercise of this right, in the constitution. It is a right of the nation in its sovereignty, and it has been held and exercised by every historical nation. There has been none but has been called to pass through crises, when the evil forces assailing its life and unity were so many, or their attack so sudden, that the omission to exercise it would be the abandonment of the plainest political obligation, and the impotence and crime of government itself, and might involve the ultimate and lasting subversion of all rights. And yet, since the

legislature cannot always act with the immediate energy which may be demanded, and does not act continuously, in its supreme necessity, in the actual or in the imminent

peril of the nation, it becomes not only the office but the?

imperative duty of the executive to assert it. But the action of the executive in its assertion is here subject to certain definite limitations; firstly, it should assume under no pretense whatever control over the legislative and judicial powers, to obstruct their organization, or to approach the persons of those in whom these powers are vested by the people; and secondly, the legislature should be summoned, if not in session, it may be by the act itself, and the imperative necessity of it should be made to appear, and its justification presented; and when the latter has been rendered, an act of indemnity may be granted by the legislative power, the process of whose action has been suspended, and the further conclusion as to the continuance of the suspension of the habeas corpus revert to the legislative power.1

But the investiture of the legislative power with this right illustrates, also finally, the residence in it, of the ultimate direction of the military, since, excepting as the duty, with definite limitations, is for the moment imposed upon the executive, the legislature alone can call the military into action. There can be between these normal powers indeed no actual conflict, except in the most awful crime,

1 In the constitution of England, the Parliament alone has the power to suspend the habeas corpus, but, in the interval of its session, or if necessity demanded sudden and secret action, during its session, the ministers of the Crown have exercised the power; but it has been always followed by the solicitation of a bill of indemnity, and the consent of the Parliament has been held requisite to justify it, and since the statute 31 Charles II., this has been always asked and allowed.

Sir Edward Coke said in the first Parliament of Charles I., of the king's claim of a right to imprison, and of the decision of the judges, "What is it but to declare upon record that any subject committed by such absolute command may be detained in prison forever? What doth this tend to but the utter subversion of the choice, liberty, and right belonging to every freeborn subject in this kingdom? A Parliament brings judges, officers, and all men into good order."

and then, in the destruction of the organization of the nation by the very powers called to act in its constitutional order, the individual is thrown back upon himself, and each has only to remember that he is a citizen before he is a soldier, and only a soldier because he is a citizen.

The more perfect organization of the legislative, executive and judicial powers in the government is attained in the long historical development of the people, but their institution is the first object of the constitution.

The immediate aim is that they shall not be severed, so that there shall be an isolation that induces alienation between them, and that they shall not be merged, so that their separate functions shall be impaired, but their construction is to conform to their nature and correlation. Since they are the manifestation of that which is immanent in the civil and political organism, the constitution may define, but, as it did not create, it cannot change their nature nor their attributes. They are not the product of a political empiric, and the ingenuity of no individual and no convention can make them other than they are. The change of these powers in the being of the nation would presume the change of the nature of the reason and judgment and will in man. They are as in a musical notation, where the separate notes are necessary to a full harmony, and yet these notes are not the creation of art, nor could art change them, and it is thus that the powers of .the state are described by Shakespeare, "as converging to one natural close, like music."

The constitution is to describe these powers and their limitation, but their strength, in which each is involved with the other, is in their construction, according to their unity and necessary correlation, and their formal description apart from this will not avail much. Their action can be determined in the words of President Madison, by "no mere demarcation upon parchment." Mr. Hamilton says, also,