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Elliot’s Debates: Volume 2

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Convention of Massachusetts, January 26, 1788

Saturday, January 26.—[The debate on the 9th section still continued desultory, and consisted of similar objections, and answers thereto, as had before been used. Both sides deprecated the slave trade in the most pointed terms; on one side, it was most pathetically lamented by Mr. Nason, Major Lusk, Mr. Neal, and others, that this Constitution provided for the continuation of the slave trade for twenty years; and on the other, the Hon. Judge Dana, Mr. Adams, and others, rejoiced that a door was now to be opened for the annihilation of this odious, abhorrent practice, in a certain time.

The paragraph which provides that “the privilege of the writ of habeas corpus shall not be suspended, unless in cases of rebellion or invasion,” was read, when

Gen. THOMPSON asked the president to please to proceed. We have, said he, read the book often enough; it is a consistent piece of inconsistency.

Hon. Mr. ADAMS, in answer to an inquiry of the Hon. Mr. Taylor, said, that this power given to the general government to suspend this privilege in cases of rebellion and invasion, did not take away the power of the several states to suspend it, if they shall see fit.

Dr. TAYLOR asked, why this darling privilege was not expressed in the same manner it was in the Constitution of Massachusetts. [Here the honorable gentleman read the paragraph respecting it, in the constitution of that state, and then the one in the proposed Constitution.] He remarked on the difference of expression, and asked why the time was not limited.

Judge DANA said, the answer, in part, to the honorable gentleman, must be, that the same men did not make both Constitutions; that he did not see the necessity or great benefit of limiting the time. Supposing it had been, as in our constitution, “not exceeding twelve months,” yet, as our legislature can, so might the Congress, continue the suspension of the writ from time to time, or from year to year. The safest and best restriction, therefore, arises from the nature of the cases in which Congress are authorized to exercise that power at all, namely, in those of rebellion or invasion. These are clear and certain terms, facts of public notoriety, and whenever these shall cease to exist, the suspension of the writ must necessarily cease also. He thought, the citizen had a better security for his privilege of the writ of habeas corpus under the federal than under the state constitution; for our legislature may suspend the writ as often as they judge “the most urgent and pressing occasions” call for it. He hoped these short observations would satisfy the honorable gentleman’s inquiries; otherwise, he should be happy in endeavoring to do it by going more at large into the subject.

Judge SUMNER said, that this was a restriction on Congress, that the writ of habeas corpus should not be suspended, except in cases of rebellion or invasion. The learned judge then explained the nature of this writ. When a person, said he, is imprisoned, he applies to a judge of the Supreme Court; the judge issues his writ to the jailer, calling upon him to have the body of the person imprisoned before him, with the crime on which he was committed. If it then appears that the person was legally committed, and that he was not bailable, he is remanded to prison; if illegally confined, he is enlarged. This privilege, he said, is essential to freedom, and therefore the power to suspend it is restricted. On the other hand, the state, he said, might be involved in danger; the worst enemy may lay plans to destroy us, and so artfully as to prevent any evidence against him, and might ruin the country, without the power to suspend the writ was thus given. Congress have only power, to suspend the privilege to persons committed by their authority. A person committed under the authority of the states will still have a right to this writ.

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