Writ without the authority of Congress, has
committed a breach of the Constitution. Were the case one referring
to our British Constitution, a plain man, knowing little of
parliamentary usage and nothing of law lore, would probably feel
some hesitation in expressing any decided opinion on such a subject,
seeing that our constitution is unwritten. But the intention has
been that every citizen of the United States should know and
understand the rules under which he is to live, and that he that
runs may read.
As this matter has been argued by Mr. Horace Binney, a lawyer of
Philadelphia - much trusted, of very great and of deserved eminence
throughout the States - in a pamphlet in which he defends the
suspension of the privilege of the writ by the President, I will
take the position of the question as summed up by him in his last
page, and compare it with that clause in the Constitution by which
the suspension of the privilege under certain circumstances is
decreed; and to enable me to do this I will, in the first place,
quote the words of the clause in question: -
"The privilege of the writ of habeas corpus shall not be suspended
unless when, in case of rebellion or invasion, the public safety may
require it." It is the second clause of that section which states
what Congress shall not do.
Mr. Binney argues as follows: "The conclusion of the whole matter is
this - that the Constitution itself is the law of the privilege and
of the exception to it; that the exception is expressed in the
Constitution, and that the Constitution gives effect to the act of
suspension when the conditions occur; that the conditions consist of
two matters of fact - one a naked matter of fact; and the other a
matter-of-fact conclusion from facts: that is to say, rebellion and
the public danger, or the requirement of public safety." By these
words Mr. Binney intends to imply that the Constitution itself gave
the privilege of the writ of habeas corpus, and itself prescribes
the taking away of that privilege under certain circumstances. But
this is not so. The Constitution does not prescribe the suspension
of the privilege of the writ under any circumstances. It says that
it shall not be suspended except under certain circumstances. Mr.
Binney's argument, if I understand it, then goes on as follows: As
the Constitution prescribes the circumstances under which the
privilege of the writ shall be suspended - the one circumstance being
the naked matter of fact rebellion, and the other circumstance the
public safety supposed to have been endangered by such rebellion,
which Mr. Binney calls a matter-of-fact conclusion from facts - the
Constitution must be presumed itself to suspend the privilege of the
writ.
