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.
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