usages of law." Courts cannot exist without writs, and Congress has given such as were necessary. Can it be contended that they could now cripple the courts by taking away the writ of habeas corpus? If they could take away habeas corpus they could take away all the other writs, which would in effect be a failure to constitute the tribunals.
Even supposing that Congress had the arbitrary power of withholding or repealing the writ, that would not be the same thing as suspending the privilege of it. If the courts were denied the power to issue the writ, that would simply be a denial to the prisoner of his specific remedy, but the principle, the right, the privilege, whereof the constitution speaks, would still remain. The constitution says, the privilege shall not be suspended except in rebellion or invasion. It speaks only of the privilege, and says nothing of the remedy. Congress might tamper with the remedy indefinitely, and yet be far outside the language and meaning of the habeas corpus clause. The fact that Congress gives the courts a habeas corpus writ has nothing to do with suspending the privilege of personal liberty guaranteed by the constitution.
Binney was perhaps successful in answering this objector; but there were others with whom it was harder to deal. Like Nicholas, they took the ground that if the clause were absent Congress would have the right to suspend; but they drew the authority to suspend, not from the power to regulate the courts, but from the power of Congress to suppress insurrection and repel invasion. One of them, George M. Wharton, took a wider range. He quoted the clauses of the constitution
- Nicholas replied to this part of Binney's argument. He said, that whether it was obligatory on Congress to establish inferior courts was a doubtful question, and admitted to be such by Story. Congress, as was well known, had not yet given to the interior courts the whole judicial power of the constitution. Congress once abolished the whole batch of inferior courts, and established new ones. In the interval between the repealing of the old and the establishing of the new could the old judges have exercised their powers on the ground that the repealing act was void? The duty of Congress to establish such courts was a moral, not a constitutional duty. Habeas Corpus. A Response to Mr. Binney, by S. S. Nicholas, Louisville, 1862; Story, Const., sec. 1593.
- Remarks on Mr. Binney's Treatise on the Writ of Habeas Corpus. By George M. Wharton, Philadelphia, 1862.