Page:Suspension of Habeas Corpus during the War of the Rebellion.djvu/12

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No. 3.]

army, navy and militia, and if the laws or the constitution are menaced by an invasion or rebellion, it surely belongs to him to decide the fact, to measure the danger and what the public safety requires. If it is his duty to execute the laws and defend the constitution he must have the right to determine when the facts exist which bring his duty into operation. The suspension of habeas corpus is most effective when used quickly in the beginning of an outbreak or conspiracy. Congress can never use it quickly and is often not in session.

This was Binney's argument in support of Lincoln. Such a powerful handling of the subject could not be disregarded. Answers and criticisms came from all sides. He seemed, as he himself said, to have flushed and put upon the wing a whole covey of reviewers.[1] Some of them were anonymous, and some had difficulty in finding a printer, for in those days the expression of an opinion, even in the North, would sometimes result in social ostracism, and there was also an apprehension that perhaps the mob might take part in constitutional discussions.

The foundation of Binney's argument was that the habeas corpus clause, even if expressed in the form of a restriction, implied a grant. It restricted suspension to certain conditions, and at the same time granted power to some department to suspend when those conditions were fulfilled.[2] This was also the underlying principle of Chief Justice Taney's opinion,

Const. Art. 2, sec. 1, "Before he enter on the execution of his office, he shall take the following oath or affirmation:—'I do solemnly swear (or affirm) that I will faithfully execute the office of President of the United States, and will to the best of my ability, preserve, protect and defend the Constitution of the United States.'"

  1. I have been able to find about forty pamphlets written during the war on the habeas corpus question. Besides these there are newspaper and magazine articles and the speeches in the Congressional debates. The pamphlets can be seen in the Philadelphia libraries, in the Public Library of Providence, and in the Boston libraries. The library of Cornell University has also a good collection. There are, doubtless, other collections, private and public, which have not come to my knowledge.
  2. He said the clause was elliptical. When the ellipsis was supplied it would read thus: The privilege of the writ of habeas corpus shall not be suspended, unless when in was or rebellion or invasion the public safety may require it; and then it may be suspended.