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. Whether the President or Congress be the agent of the
Constitution in this suspension, is not matter of moment. Either
can only be an agent; and as Congress cannot act executively,
whereas the President must ultimately be charged with the executive
administration of the order for that suspension, which has in fact
been issued by the Constitution itself, therefore the power of
exercising the suspension of the writ may properly be presumed to be
in the hands of the President and not to be in the hands of
Congress.
If I follow Mr. Binney's argument, it amounts to so much. But it
seems to me that Mr. Binney is wrong in his premises and wrong in
his conclusion. The article of the Constitution in question does
not define the conditions under which the privilege of the writ
shall be suspended.
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