Page:Suspension of Habeas Corpus during the War of the Rebellion.djvu/6

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No. 3.]

or having it before their eyes would certainly not have made the American President more powerful over civil liberty than the English King. Moreover, authority had spoken. Story in his Commentaries[1] gives the power to Congress, and Chief Justice Marshall in deciding Bollman's case[2] incidentally expressed himself as of the same opinion.

A few months after the publication of Taney's opinion in Merryman's case a remarkable pamphlet appeared. It was by Horace Binney, for many years the leader of the Philadelphia Bar, and at that time retired from practice and in his eighty-second year. Before Binney’s pamphlet appeared Lincoln's action had of course been discussed in the newspapers. Of those who supported the President, some maintained that as commander-in-chief of the army and navy he had the implied right to suspend habeas corpus; others held that in a rebellion he could declare martial law, which, as it destroyed all civil authority, would easily dispose of the writ. Binney took an entirely new view of the subject. He believed that the President could of his own motion suspend the writ; but he refused to regard such suspension either as the lawful exercise of the military power of the commander-in-chief or as an incident of martial law. He did what no one else had attempted. He took the plain words of the constitution and deduced from them an intention to confer the power of suspension on the President.

The constitution, he said, provides that in cases of rebellion or invasion, when the public safety requires it, the privilege of the writ of habeas corpus may be suspended. That is to say, the people of the United States have declared that this great privilege may under certain conditions be denied or deferred, for a season. The constitution authorizes this to be done, but does not expressly authorize any department to do it. The

  1. Sect. 1342.
  2. Ex parte Bollman, 4 Cranch, 75, 95, 101. Bollman was arrested for participating in Burr's conspiracy.

    Besides Story and Marshall there are some minor authorities to the same effect. Hurd, Habeas Corpus, 133, 134; Johnston vs. Duncan, 1 Martin (La.), 157; 2 Tucker's Blackstone, 134, note; Sheppard, Constitutional Text Book, 143.